text:
    JAMES A. GIBSON, Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY.
    Division Two,
    February 12, 1910.
    1. RETROSPECTIVE LAW: Existing Cause: New Party: Act of 1905. A statute which gives to the administrator of a deceased person killed by the negligence of a railroad company in another state, the same right to sue in this state as the laws of such other state give him, merely provides a remedy by which he can enforce a cause of action already existing and accrued, and hence is not retrospective; and therefore the Act of 1905, Laws 1905, p. 95, is not unconstitutional.
    2. PLEADING: Conclusions of Law. Allegations in no sense statements of facts, but clearly conclusions of law, are neither traversable nor demurrable, but, in passing upon the demurrer, should be eliminated from the petition.
    3. -: -: Statute of Another State. In a suit for damages for personal injuries, a petition, alleging that the injury occurred-in another state, that under a certain statute of that state plaintiff is limited to two years to institute a suit for the death of deceased caused by the negligence of defendant, that plaintiff did institute said suit within two years by filing his petition in the proper circuit court of this State, that under and by virtue of certain other numbered sections of the statutes of that state actions for the death of said deceased survived to plaintiff, and that under and by virtue of said sections plaintiff is authorized to sue and recover damages caused by the death of said deceased on account of the carelessness and negligence of defendant, does not state a cause of action, but at most merely states conclusions of law. The statute of another state relied upon as giving or constituting a cause of action must be substantially pleaded with such distinctness that the court may judge of its effect, and the facts that constitute its violation must also be pleaded. The • foreign statute in such case must be pleaded just as any other substantive fact.
    Appeal from Buchanan Circuit Court. — How. Henry M. Harney, Judge.
    Affirmed.

      Allen, Qabbert & Mitchell, Mytton & Parkinson and Chas. C. Crow for appellant.
    Plaintiff, under the laws of Iowa referred to in the petition, had a cause of action against defendant which had fully accrued on the date mentioned in the petition, hut under the law in effect in this State at that time there was no procedure provided by law for enforcing plaintiff’s existing cause of action in this State, and to remedy this condition the State of Missouri passed an act found in Session Laws 1905, at page 95, which act provided plaintiff a remedy in this State for his then existing cause of action. As the Act of 1905 went solely to the remedy for existing and future causes of action, same was not retrospective in its operation within the meaning of the Constitution. The act related solely to a remedy and did not purport to affect, alter, change or enlarge plaintiff’s rights under his then existing cause of action, and therefore the act is not retrospective. Clark v. Railroad, 219 Mo. 531; Bruns v. Crawford, 34 Mo. 330; Porter v. Mariner, 50 Mo. 364; Wellshear v. Kelley, 60 Mo. 343; In re Life Association of America, 91 Mo. 177; Drake v. Summerwell, 58 Mo. App. 246; Golden City v. Hall, 68 Mo. App. 627; Rosenfelt v. Railroad, 180 Mo. 554; State ex rel. v. Curr, 8 Mo. App. 125; Lovell v. Davis, 52 Mo. App. 342; Coe v. Ritter, 86 Mo. 277; State ex rel. v. Dolan, 93 Mo. 467; O ’Bryan v. Alleb, 108 Mo. 227; Plarrstick v. Gabriel, 200 Mo. 237; Frost v. Witter, 132 Cal. 421; 64 Pac. 705. For a statute to be objectionable under the provision prohibiting- retrospective legislation it must impair existing vested rights. In this case the statute does not under-, take to impair any right, create any cause of action, change or modify any existing cause of action, or change the rules of evidence or the rights of defendant in any manner, but merely provides a procedure by which plaintiff can in this State enforce an existing cause of action in exact accordance with bis rights existing prior to the enactment of the law of 1905. State ex rel. v. Marion County, 128 Mo. 437; Vanata v. Johnson, 170 Mo. 269; Gladney v. Snyder, 172 Mo. 318; Rotsong y. Web, 35 Mo. 174; Barton County v. Walser, 47 Mo. 189; Kreyling v. O’Riley, 97 Mo. App. 384; Hope Mutual Insurance Co. v. Flynn, 38 Mo. 483.

      Culver & Phillip for respondent.
    That the presumption is that the common law is in force in Iowa, that by the common law no action accrues to the administrator, or any one else, for the wrongful death of a person, and that where a statute giving such cause of action exists it must be pleaded as any other fact, in an action based upon it in a foreign state, and that the failure to plead the statute renders the petition demurrable, is well established. Lee v. Railroad, 195 Mo. 415. Plaintiff has failed to plead any statute of Iowa giving him a cause of action for the death of his intestate; it follows, that both grounds of the demurrer are well taken, and it was properly sustained. Mallinckrodt v. Nemnich, 169 Mo. 388; Hand v. St. Louis, 158 Mo. '212; State ex rel. v. Aloe, 152 Mo. 466; Merchants Exchange v. Knott, 212 Mo. 616; Martin v. Castle, 193 Mo. 183. A foreign law if relied upon as constituting a cause of action or a defense, must be pleaded with such distinctness that the. court may judge as to its effect. It is a fact to be pleaded as any other fact, and pleading by title, chapter or section or by stating a mere conclusion, is insufficient. McDonald v. Life Assn., 154 Mo. 618; Swank v. Hufnagle, 111 Ind. 453; Forsyth v. P'reer, 62 Ala. 443; Cubbedge v. Napier, 62 Ala. 518; Hempstead v. Reed, 6 Conn. 480; Pearce v. Rhawn, 13 Ill. App. 637; Bean v. Briggs, 4 la. 464; Carey v. Railroad, 5 la. 357; Roots y. Merriwether, 71 Ky. 397; Templeton v. Sharp, 9 S. W. (Ky.) 696; Temple v. Brittain, 12 S. W. (Ky.) 306; Railroad v. Miller, 19 Midi. 305; Hoyt v. McNeil, 13 Minn. 390‘; Bank v. Lang, 2 N. D. 66; McDonald v. Life Assn., 154 Mo. 618.
   BURGESS, J.

The plaintiff instituted this suit in the circuit court of Buchanan county, against the defendant, to recover the sum of $10,000 damages for the death of his intestate, Martin M. "Welch, caused by the alleged negligence of the defendant.

The petition filed therein was as follows (formal parts omitted):

“Plaintiff states that the Chicago Great Western Railway Company is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, and as such corporation is engaged in the general railroad business in the State of Iowa, and has a railroad right-of-way, tracks, rolling stock and equipment, owned, used and operated in the State of Iowa, and employs, among other servants, brakemen to operate its trains through the State of Iowa. Plaintiff states that deceased, Martin M. Welch, was in the employ of defendant railway company as a railway brakeman on and prior to the third day of August, 1906, and that said deceased was brakeman on a freight train owned, operated and controlled by defendant in the State of Iowa.
“Plaintiff, James A. Gibson, states that he is now and during all the times herein mentioned, has been a resident of the State of Missouri, and that deceased, Martin M. Welch, died in the State of Iowa.
“Plaintiff states that under and by virtue of section 3297 of the Code of Iowa a person not a resident of the State of Iowa may be appointed administrator of the estate of a person who departed this life in the State of Iowa, and that on the — day of August, 1905, plaintiff was duly and regularly appointed administrator of the estate of Martin M. Welch, deceased, in the probate court of Taylor county, in the State of Iowa, and that letters of administration were duly and regularly issued to plaintiff on the estate of said Martin M. Welch., and that he is now and since the — day of August, 1905, has been the regularly appointed and duly acting administrator of the estate of Martin M. Welch, deceased, and was duly appointed administrator by the probate court of Buchanan county, Missouri, on the-day of August, 1905, of the estate of Martin M. Welch, deceased, and is now acting and qualified administrator of said estate in Iowa and Missouri.
“Plaintiff states that under and by virtue of section 3447 of the Code of Iowa plaintiff is limited to two years in which to institute suit against defendant for the death of Martin M. Welch, caused by negligence, as hereinafter alleged, and that this suit was instituted in the circuit court of Buchanan county on the-- day of-1905, by filing in said court the original petition and issuing summons thereon and within two years after the death of Martin M. Welch.
“Plaintiff states that under and by virtue of sections 3313 and 3443 of the Code of Iowa actions for damages for the death of Martin M. Welch, survived to plaintiff as administrator, and that under and by virtue of said sections plaintiff is authorized and empowered to sue and recover damages caused by the death of Martin M. Welch against defendant on account of the carelessness and negligence of defendant, which resulted in the death of M'artin M. Welch, as hereinafter alleged.
“Plaintiff states that the said Martin M. Welch, deceased, on and prior to the 3d day of August, 1903, was in the employ of defendant as a brakeman on one of its freight trains; that on or about the 23rd day of August, 1903, said Martin M. Welch, deceased, was engaged in the performance of his duties as such brakeman on one of defendant’s freight trains, which ran from St. Joseph, Missouri, to Des Moines, Iowa; that said train consisted of cars heavily loaded with wheat and other grain and produce; that while so engaged in snch duties, and while said train was running between the stations of Arispe, Iowa, and Shepherd, Iowa, and while the said train was in rapid motion, the said train was wrecked by reason of one of the cars of said train leaving the track on account of one of the wheels of said car being broken; that said car, which bad said wheel broken, was heavily loaded with wheat beyond the capacity and strength of said car; that the wheel of said car at the time and for a long period of time prior to its leaving said track had been in the broken condition herein complained of, and that said defendant knew at the time that said car was attached to and made a part of the train herein referred to was broken, or by the use of ordinary care and reasonable inspection could have known of the broken and dangerous condition of said wheel.
“Plaintiff states that it was dangerous to the employees of defendant engaged in the operation of said train, and especially to deceased, to attach said car to said train, and the acts of defendant herein complained of in attaching said car in the condition herein alleged, and being overloaded, as herein alleged, was carelessness and negligence on the part of defendant, which caused the injuries and death of said Martin M. Welch, as herein stated.
“Plaintiff states that when said train was wrecked, as hereinbefore stated, on account of the car, hereinbe-fore referred to, leaving the track, Martin M. Welch was on said train as an employee of defendant, and in the performance of his regular and customary duties as a brakeman, and by reason of said train being wrecked plaintiff states that said Martin M. Welch was instantly killed by the cars of said train leaving the track of defendant railway company, falling against and upon said Martin M. Welch, and thereby causing the injuries from which he died, on the said 23rd day of August, 1903.
“Plaintiff states that each, and all of the acts herein complained of was carelessness and negligence npon the part of defendant railway company.
“Plaintiff states that by reason of the death of said Martin M. Welch his estate has been damaged in the sum of ten thousand dollars.
“Wherefore, plaintiff prays judgment against defendant for the sum of ten thousand dollars and his costs in this behalf expended.”
To this petition, the defendant filed a demurrer, which is as follows:
“Comes now the defendant in the above entitled cause and demurs to petition of plaintiff filed herein for the following reasons, to-wit:
“1. Because the plaintiff has no legal capacity to sue.
“2. Because the petition does not state facts sufficient to constitute a cause of action. ’ ’

The court sustained this demurrer, to which action of the court the plaintiff duly excepted, and declining to plead further, the court rendered judgment against him. Prom this judgment the plaintiff duly appealed the cause to this court.

I. The trial court sustained the demurrer. for both reasons assigned therein; and counsel for appellant assign that action of the court as error.

We will consider the grounds of the demurrer in the order stated therein.

As regards the former, there is no pretense but what, under the laws of Iowa referred to in the petition (if properly pleaded), appellant had a perfect cause of action against the respondent at the time mentioned in the petition, but under the law of this State, as it then existed, there was no remedy or procedure existing for the enforcement of-appellant’s said cause of action, in this State.

In order to remedy that condition of things, the Legislature of Missouri passed an act, found in the Session Acts of 1905, at page 95, providing a remedy in this State for such causes of action.

In the trial court counsel for respondent assailed the constitutionality of said act as being violative of section 15 of article 2 of the Constitution, prohibiting the enactment of laws retrospective in character. Upon the other hand, counsel for appellant insists, that since said Act of 1905 is regarding only the remedy for then existing and future causes of action, it was not retrospective in its operation within the meaning of said constitutional provision.

Said act reads as follows:

“Section 548. Whenever any cause of action has accrued under or by virtue of the laws of any other state or territory, and the person or persons entitled to the benefit of such cause of action are not authorized by the laws of such state or territory to prosecute such action in his, her, or their own names, then, in every such case, such cause of action may be brought and prosecuted in any court of this state by the person or persons authorized under the laws of such state or territory to sue in such cases. - Such suits may be brought and maintained by the executor, administrator, guardian, guardian ad litem, or any other person empowered by the laws of such state or territory to sue in a representative capacity.”

There can be no question but what this act relates solely to the remedy, and does not affect, alter, change or enlarge appellant’s said cause of action against respondent, ox impose any new or additional obligation upon the latter.

This court has repeatedly held, in a long line of cases, that acts of the Legislature which relate only to the remedy of existing causes of action are not obnoxious to said section of the Constitution, among which are the following:

Clark v. Railroad, 219 Mo. l. c. 531; State ex rel. v. Taylor et al. (In Banc), 224 Mo. 393; Haarstick v. Gabriel, 200 Mo. 237; O’Bryan v. Allen, 108 Mo. 227; Porter v. Mariner, 50 Mo. 364.

The decisions here and elsewhere hold, that before a statute can be denounced as invalid under the provision of the constitution prohibiting retrospective legislation, it must impinge some existing vested right. In the case at bar, the Act of 1905 does not impair any vested right of respondent, nor does it create a cause of action in favor of appellant, nor does it modify or change any existing cause of action which existed in his favor at the time of its enactment; but, as before stated, it merely provides a remedy by which appellant could enforce in this State a cause of action then existing in his favor under the laws of the State of Iowa. [State ex rel. v. Marion Co., 128 Mo. 437; Yanata v. Johnson, 170 Mo. 269; Gladney v. Sydnor, 172 Mo. 318; Frost v. Witter, 132 Cal. 421.]

We are, therefore, of the opinion that the circuit court erred in sustaining the demurrer for- the first reason assigned.

II. The second ground of the demurrer presents a much more serious proposition for determination. It assails the validity of the petition, because it does not state facts sufficient to constitute a cause of action against the respondent, in this: It alleges that the injury and death of Welch occurred in the State of Iowa, but it fails to plead.the Iowa Statutes governing such cases, except as will be presently stated. That plea is as follows:

“Plaintiff states that under and by virtue of section 3447 of the Code of Iowa plaintiff is limited to two years in which to institute suit against defendant for the death of Martin M. Welch, caused by negligence, as hereinafter alleged, and that this suit was instituted in the circuit court of Buchanan county on the —— day of- 1905, by filing in said court the original petition and issuing summons thereon and within two years after the death of Martin M. Welch.
Plaintiff states that under and by virtue of sections 3313 and 3443 of the Code of Iowa actions for damages for the death of Martin M. Welch, survived to plaintiff as administrator, and under and by virtue of said sections, plaintiff is authorized and empowered to sue and recover damages caused by the death of Martin M. Welch against defendant on account of the carelessness and negligence of defendant, which resulted in the death of Martin M. Welch, as hereinafter alleged.”

These allegations are in no sense statements of facts but are clearly conclusions of law drawn by the pleader; and, in passing upon the demurrer, they should be eliminated from the petition, for the reason that they are neither traversable nor demurrable.

In passing upon a similar question, this court, in the case of Mallinckrodt v. Nemnich, 169 Mo. l. c. 397, used this language: ‘ ‘ The allegation quoted is simply the averment of a legal conclusion; not the statement of issuable facts; not, therefore, either traversable or demurrable, and is to be treated as no statement at all, and consequently obnoxious to attack by general demurrer. [Bliss Code Plead. (3 Ed.), sec. 413, and note; Ib., secs. 210, 211, 212, 213; Craft v. Thompson, 51 N. H. l. c. 540; McKinzie v. Mathews, 59 Mo. l. c. 102; Cooper v. French, 52 Iowa 531.] ‘The allegation of a conclusion of law raises no issue, need not be denied, and its truth is not admitted by a demurrer to the complaint containing it.’ [Kittinger v. Buffalo Traction Co., 54 N. E. 1081; see also 12 Ency. Pl. and Prac., 1022, et seq.; Institute v. Bitter, 87 N. Y. 250; Hoester v. Sammelmann, 101 Mo. l. c. 624.]”

To the same effect are Hand v. St. Louis, 158 Mo. l. c. 212, 213; State ex rel. v. Aloe, 152 Mo. 466; Martin v. Castle, 193 Mo. 183.

It is elementary, that where a foreign statute, or the statute of another state, is relied upon as giving, conferring or constituting a cause of action, it must he substantially stated with such distinctness that the court may judge its effect.

Not only must the law in such cases he pleaded, hut the facts which constitute its violation must also he stated. But where the cause of action is predicated upon the laws of this State, good pleading does not require such laws to he pleaded. The reason for this distinction is based upon the fact that the courts of this State, will take judicial notice.of their own laws, hut cannot take judicial notice of the existence of statutes in other states or countries. [McDonald v. Life Association, 154 Mo. 618; Cubbedge v. Napier, 62 Ala. 518; Swank v. Hufnagle, 111 Ind. 453; Carey v. Railroad, 5 Iowa 357; Roots v. Merriwether, 71 Ky. 397; Railroad v. Miller, 19 Mich. 305; Bean v. Briggs, 4 Iowa 464.]

In the case of McDonald v. Life Assn., supra, this court, on page 628, said: “The defendant realized this, for it attempted to plead the Iowa law and did plead the certificate of the State Superintendent of Insurance of Missouri, authorizing it to do business as an assessment company. But the certificate does not determine the character of insurance the defendant actually issues. It determines only the character of business it was licensed to do; the policy settles the class to which the defendant actually belongs. The laws of Iowa were not properly pleaded (the chapter of the Revised Statutes of Iowa is referred to only by number — its terms, tenor or effect are not set out) and therefore their reading on the trial was properly excluded. [Morrissey v. Wiggins Ferry Co., 47 Mo. l. c. 525; Flato v. Mulhall, 72 Mo. l. c. 525.] The laws of sister states must be alleged and proved like any other issue of fact. [Mooney v. Kennett, 19 Mo. 551; Babcock v. Babcock, 46 Mo. 243; Clark v. Barnes, 58 Mo. App. 667; Charlotte v. Chouteau, 25 Mo. 465.] ”

In Cubbedge v. Napier, supra, it was averred by the pleader that “at the time of the execution and delivery of said note and mortgage under and by virtue of said statute laws of Georgia all titles to property made as part of an usurious contract, or to evade the usury laws of such state, are void,” etc. As to the sufficiency of this pleading, the Supreme Court of Alabama said: “When the complainant in a bill in equity deduces his title to relief from the statute of a sister state, the statute must be substantially stated in the bill; for the reason that the court cannot judicially take notice of it. A general averment of the existence of the statute, and that it confers the right, is not sufficient. It is a statement of the conclusion of the pleader rather than a statement of facts. Thus, in Cockrell v. Gurley, 26 Ala. 405, which was a bill filed by a remainder-man for the protection of his interest in certain slaves, which had been allotted in Kentucky to the tenant of the particular estate, as dower in the estate of her deceased husband, the statute of Kentucky, it was averred, limited her interest to a life estate, with remainder to the next of kin of her husband. The averment was in this form: ‘That by the statute laws of Kentucky at the time of the death of said Henry B. Haley (the husband) and the allotment of dower to his widow, as aforesaid, she was only entitled to a life interest in said negro Chaney and her increase, and the estate in remainder vested in the said Mary Ann (the complainant).’ This court pronounced the averment insufficient — that it was simply a statement of what the pleader supposed to be the law of Kentucky. If the usury consists in the violation of the law of a state other than that in which the enforcement of the contract is sought, the law is matter of fact, which must be pleaded with the certainty that any extrinsic fact must be pleaded which is essential to a right of action or to constitute a defense. The pleader may be well satisfied of his construction of the foreign law, and may assert it is the law itself; that is not his province. The law must be substantially stated; and the facts must be averred which are supposed to constitute its violation, then the court can determine whether the facts — the foreign law, which is but a fact — and the transaction supposed to offend it, compel the repudiation of the contract. . . . Subjecting these averments to the rules we have stated, they are not averments of fact, but the conclusions of the pleader.”

In the ease of Carey v. Railroad, supra, on page 364, the court said: ‘ ‘ The general reference in the bill, to the laws of the State of Indiana, is not sufficient. If complainant would rely upon the fact that the Cincinnati, New Castle and Michigan Railroad Company had failed to organize according to the laws of that state; o.r that it had conducted in such a manner, as that, under and by virtue of those laws, it had forfeited its charter, or ceased to have a corporate existence— the particular statute or statutes relied upon should be set out, that the courts of this state may be able to judge of their provisions, and of the duties thereunder devolving upon this company. Our courts do not take judicial notice of the statutes of another state. And if a party relies upon such statutes, he must set them out — plead them as he does any other fact, and it will not do to refer to them by their title, and date of approval, nor by stating what in the opinion and judgment of the pleader are their general provisions and requirements. [Bean v. Briggs, 4 Iowa 464, and cases there cited; Walker v. Maxwell, 1 Mass. 103; Legg v. Legg, 8 Ib. 99; Collett v. Keith, 2 East 261.] ”

And in the case of Bean v. Briggs, 4 Iowa 468, the court said: “The established doctrine now is that no court takes judicial notice of the laws of a foreign country, but they must be proved as facts. [Story’s Conf. of Laws, see. 637, and the authorities cited in note 2.] And if a party would introduce such proof, it is not sufficient to aver, as a plaintiff, in his pleadings, that his right to recover is warranted by the law or statute of another state, where his contract was made; no.r as a defendant, in his answer, that plaintiff cannot recover by reason of the provisions of such foreign statute, hut he must plead the particular statute relied upon, and set it out, as he would any other fact in the case, that the court may he able to see and judge whether the proceeding is warranted, or the defense tenable, under such law. [1 Chitty, Pleading, 247; Holmes v. Broughton, 10 Wend. 75; Pearsall v. Dwight, 2 Mass. 34.]”

In Swank v. Hufnagle, 111 Ind. 453, the plaintiff alleged “that the contract was made in Ohio, and that by a statute of that state a married woman had power to execute such a mortgage,” but the statute of Ohio was not set out, and that pleading was held bad.

In Hand v. St. Louis, 158 Mo. l. c. 212, it was alleged: “That in consequence of the act of the city, that is, the act of building an engine house on the lot, and its location and the development of the city, it is now impossible to use it for a market.” The Supreme Court said of this allegation: “Thus stated it is a mere conclusion of the pleader and hot very logical as such. A demurrer admits only facts pertinently pleaded. It does not admit a conclusion.”

And so in Martin v. Castle, 193 Mo. l. c. 194, where the plaintiff in his petition sought to have certain judgments declared void, the allegations of the petition respecting these judgments were substantially as follows: “That the records and proceedings by which said pretended judgments were procured nowhere show that the defendant, who is plaintiff herein, was ever served with process as required by law, and that said justice of the peace had no jurisdiction of the subject-matter of the action.” With reference to the sufficiency of these allegations to show that the judgments were void, on demurrer to the petition, this court said: “The first allegation is a mere conclusion of law, and the inference to he drawn from the allegation is that the defendant was served with process, hut not according to law as understood by the pleader. How o,r in what particular the service was defective, if such was the case, is not indicated, and it should'have been pointed out in order that the court might determine whether it was fatal to the judgment. If the defendant was not served' at all, the petition should have so alleged. The other allegation is equally had in that it does not allege why or wherein the justice lacked jurisdiction of the causes. The demurrer only admits facts that are well pleaded, and these facts were not well pleaded.”

There are many other eases of like import and none to the contrary to which our attention has been called. See Forsyth v. Preer, 62 Ala. 443; Hempstead v. Reed, 6 Conn. 480; Temple v. Brittan, 12 S. W. (Ky.) 306; Hoyt v. McNeil, 13 Minn. 390; Bank v. Lang, 2 N. D. 66; Pearce v. Rhawn, 13 Ill. App. 637.

We are, therefore, of the opinion that the action of the circuit court in sustaining the demurrer to the petition on the second ground assigned was proper, and that the judgment for that reason .should be affirmed; and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. JESSE F. KEENER, Appellant.
    Division Two,
    February 12, 1910.
    1. INFORMATION: Omission of Word “Did.” The information charged, that defendant “did malee an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, heat and wound and stab him,” etc. Held, that the omission of the word “did” before the words “feloniously assault” did not vitiate the information. That word, once used in that connection, is carried forward in meaning to the others, and its omission does not violate the rule that nothing is to be taken by intendment or implication in a felony charge.
    2. -: Preliminary Hearing. A motion to quash the information on the ground that no preliminary hearing was had, does not prove itself, and if unsupported by an affidavit or evidence, the overruling of it is not reversible error.
    3. ASSAULT: Deadly Weapon: Assumed' in Instruction. An instruction which tells the jury that “he who willfully, that is, intentionally, uses upon another at some vital point, a weapon, to-wit, a knife, a deadly weapon, must in the absence of qualifying facts,” etc., is not reversible error in that it assumes that the knife is a deadly weapon, in view of the fact that the evidence shows the wounds inflicted by the knife were dangerous. [Distinguishing State v. Harris, 209 Mo. l. c. 438.]
    4. INSTRUCTIONS: Refusing Defendant's. Where the court has fully and properly instructed the jury on the subject of the presumption of defendant’s innocence and of the information being a mere formal charge and no evidence of his guilt, it is not error to refuse to give defendant’s instructions on the same subjects.
    5. CROSS-EXAMINATION OF DEFENDANT. The cross-examination of defendant need not be confined to a mere categorical review of the matters stated in his direct examination. Where defendant claimed his shoulder blade had been broken in the fight, and he had testified to an examination by one Wilson the next morning, it was not improper cross-examination to ask him if he did not on that occasion walk about the room on his hands and feet.
    6. NEW TRIAL: Newly-Discovered Evidence. If it is apparent that the newly-discovered evidence would not probably produce a different result, and that it is cumulative, the court does not err in refusing a new trial because of it.

      Appeal from Christian Circuit Court.— Eon. Jno. T. Moore, Judge.
    Affirmed.

      0. Purd Hays for appellant.
    (1) The motion to quash should have been sustained because the information in this case charges no offense under the laws of the State. Nothing can he taken by intendment or implication in a felony case. The knife is described as being six inches long, but has no blade. State v. Furgerson, 152 Mo. 92; State v. Daugherty, 30 Tex. 360; State v. Eivans, 128 Mo. 406; State v. Rector, 126 Mo. 328; State v. Birks, 199 Mo. 263; State v. Woodward, 191 Mo. 617. That said information should have been quashed for the reason that the defendant was not accorded a preliminary hearing after his arrest as alleged in the motion to quash. Laws 1907, sec. 2476a, p. 243. (2) By the giving of said instruction 10 the court tells the jury that a knife is a deadly weapon, which the court had no right to do; that was a fact for the jury to find from the evidence and not for the court to declare as a matter of law. State v. Grant, 152 Mo. 57; State v. Harris, 209 Mo. 423. (3) That the court committed reversible error in compelling the defendant, over the objections of his 'counsel, to testify to things on which he was not examined in his examination in chief, and compelled the defendant to testify against himself. That defendant was compelled to tell things which were privileged and the evidence tended to prejudice the jury against him. The court invaded the rights of the defendant. Constitution, secs. 11 and 23, Bill of Rights; State v. Lehman, 175 Mo. 619. (4) The court committed reversible error in refusing to grant the defendant a new trial on newly discovered evidence. Sec. 2688, R. S. 1899; State v. Moberly, 121 Mo. 604; State v. Murray, 91 Mo. 95.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) (a) The information charges the offense in the language of the statute, and is sufficient. It follows closely a form approved by this court. State v. Barton, 142 Mo. 453. Numerous decisions of this court attest the sufficiency of this information. State v. Dalton, 27 Mo. 13; State v. Harper, 69 Mo. 425; State v. Chandler, 24 Mo. 372; State v. G-reenhalgh, 24 Mo. 373; State v. Hendrickson, 165 Mo. 264. (b) Defendant, in his brief, contends that the word “did” should have been placed before the words ‘ ‘ feloniously assault, beat and wound and stab him, ’ ’ etc., and that since it is not found in the position indicated, the information is bad, notwithstanding its conformity to the form approved in State v. Barton, 142 Mo. 453. In support of this view he cites several cases. While these cases are illustrative of the care with which this court exacts compliance with the constitutional guaranty that each defendant shall be properly advised, by the indictment or information, of the charge against him, yet they have no bearing upon the case at bar. The information in this case charges that defendant “in and upon one Barney Gregory, fe-loniously, on purpose and of his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, beat, wound and stab him,” etc. The word “did” used in immediate connection with the charge of assault is carried, in meaning, by every rule of grammatical construction, into connection with the following clause. And applying well recognized rules of grammar to an indictment, falls far short of supplying omissions by intendment. State v. Barton, 142 Mo. 453. (c) The other ground of the motion to quash went to a mere irregularity in the previous proceedings. State v. Pritchett, 219' Mo. 703. This ground of the motion, raising a question of fact, did not prove itself, and no evidence was offered by defendant on tbe bearing of tbe motion so far as tbe record shows. For this reason this ground of tbe motion cannot avail appellant here. State v. Craft, 164 Mo. 649. And generally tbe court’s discretion in overruling motions to quash will not be reviewed. State v. Patterson, 159 Mo. 100; State v. Lucas, 147 Mb. 72. In fact, the evidence offered before tbe grand jury indicates in several instances that a preliminary examination was held and defendant discharged. This was sufficient to meet all requirements. State v. Pritchett, 219 Mo. 703. (2) The cross-examination of defendant as to his conduct the morning after the fight, incompatible with his statement that his shoulder blade was broken, was proper. State v. Myers, 221 Mo. 613; State v. Miller, 156 Mo. 85; State v. Miller, 190 Mo. 463. (3) Instruction 10 in this case does not necessarily fall within the rule laid down in the case of State v. Harris, 209 Mo. 438. There the instruction condemned predicated the specific intent to kill upon the use of the knife upon another at a vital part without requiring the jury to find that the knife used was a deadly weapon. In the tenth instruction in this case, also, the jury were not required to find the knife used by defendant to be a deadly weapon. The statute makes the stabbing of another on purpose, of malice aforethought and with intent to kill, the offense, regardless of whether the knife used is a deadly weapon. There are cases which seem to intimate that the tenth instruction is not bad. State v. Jones, 86 Mo. 626; State v. Musick, 101 Mo. 267; Jeff v. State, 39 Miss. 600. Further, in the case at bar the rule that the wounds given may sometimes characterize the weapon, conclusively, as dangerous (State v. Bow-les, 146 Mo. 13, cited in State v. Harris, 209 Mo. 439), might be applicable..
   BURGESS, J.

At the February term, 1909', of the circuit court of Christian county, upon an information charging him with having made a felonious assault upon one Barney Gregory, with intent to hill him, the defendant was found guilty of said offense, and his punishment assessed by the jury at two years in'the penitentiary. In due time motions for new trial and in arrest of judgment were filed. The motion in arrest was overruled, but while the bill of exceptions recites that the motion for new trial was overruled, the record does not show that there was any order overruling the same. Defendant was sentenced upon the verdict, and appealed to this court.

The evidence for the State was, in substance, as follows:

On the night of November 2, 1908, a political “rally” was held in a skating rink in the town of Billings, in Christian county. Defendant and the prosecuting witness, Gregory, attended said “rally,’’.both at the time being somewhat under the influence of intoxicants. They exchanged “hurrahs” for their respective candidates, each making use of remarks derogatory to the other’s political favorite. The meeting being over, they repaired to the sidewalk in front of the skating rink, where words of anger passed between them. The defendant shoved Gregory away from him, whereupon Gregory struck the defendant. The latter then struck Gregory with a knife, and Gregory again struck defendant with his fist. Both men fell, Keener on top, but in the scuffle Gregory wriggled from under Keener and got on top. Defendant put his arm around Gregory, and was seen to stab him several times with a knife held in his right hand. After the combatants were pulled apart, defendant was heard to say, “Let me to him — I will fix him yet.” Gregory was taken to a physician, who dressed his wounds. The physician testified that Gregory had received seven knife wounds, one of which was dangerous, and that he was bleeding profusely. As to the -wound which he characterized as dangerous, the physician said that it “would have killed him under conditions.”

In his own behalf, defendant testified that he tried to avoid trouble with Gregory, and that the latter struck the first blow; that Gregory had a knife in his hand, and that he knocked it out of his hand in the exchange of blows; that Gregory drew from his pocket what defendant thought was a pair of knucks, and struck him therewith, breaking his left shoulder blade; that he fell and Gregory fell on top of him; that he, defendant, drew his knife, opened it with his teeth, and struck Gregory with his knife in order to protect himself, and that as soon as Gregory called for help, he stopped striking him with the knife.

Dr. J. P. Baird, by deposition, testified to the effect, that on November 4, 1908', he examined defendant, and found his collar bone broken, and a “bruise on top of the collar bone, appearing as if it had been done with a moderately blunt instrument;” that he found a contusion on defendant’s left cheek, and a knife wound, about five inches loug, in the left forearm, which wound was but skin deep, and that defendant at the time also complained of a bruise on the right side.

The evidence is quite conflicting, particularly as to which man was the aggressor, the evidence for the State being that the defendant struck the first blow, while that for defendant tended to show that Gregory began the fight.

Defendant filed a motion to quash the information, which motion was overruled by the court, the defendant duly excepting. Said motion assailed the information on two grounds, to-wit: (1) Because the information charged no offense under the laws of this State, and (2) because, according to the motion, no preliminary hearing had been accorded-the defendant.

The information, leaving off the formal parts, is as follows:

“Fred W. Barrett, prosecuting attorney within and for the county of Christian, in the State of Missouri, informs the court, under his official oath and upon his best- information and belief, that Jesse F. Keener, on or about the second day of November, 1908, in the said county of Christian, in the State of Missouri, in and upon one Barney Gregory, feloniously, on purpose and of his malice aforethought, did make an assault, and then and there, on purpose and of his malice aforethought, feloniously assault, beat, wound and stab' him, the said Barney Gregory, with a large knife of the length of six inches, which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, which knife he, the said Jesse F-Keener, then and there had and held in his right hand, with intent then and there him, the said Barney Gregory, on purpose and of his malice aforethought, feloni-ously to kill and murder, contrary to the form of the statute,” etc.

The information charges the offense in the language of the statute, and the intent is plainly charged. Defendant, however, insists that the information is bad, and that his motion to quash should have been sustained, for the reason that the word “did” is omitted from the charging part of the information. The information reads: “Did make an assault, and then and there, on purpose and of his malice aforethought,” etc., and defendant maintains that the word “did” should have been placed between the words “and” and “then,” and that its omission renders the information defective.

In the case of State v. Barton, 142 Mo. 450, the charge in the indictment was in the exact language of the information in this case, and said indictment was held good. The auxiliary“ did, ” used in immediate connection with the charge of the assault, is carried, in meaning, by every rule of grammatical construction, into connection with the following clause, and thus understood and applied, does no violence to the rule that nothing is to he taken by intendment or implication in a felony case. The. cases cited by defendant in support of his contention fall far short of doing so, and are not in point.

As to the second ground of the motion to quash, it goes to a mere irregularity in the previous proceedings. [State v. Pritchett, 219 Mo. l. c. 703.] This ground raises a question of fact, which did not prove itself. So far as the record shows, no affidavit was filed, nor was there any evidence offered to prove that the defendant was not accorded a preliminary hearing, as required by section 2476a, Laws of 1907, p. 243, and for this reason the second ground of the motion fails. Generally, the court’s discretion in overruling motions to quash will not be reviewed. [State v. Patterson, 159 Mo. l. c. 100; State v. Lucas, 147 Mo. l. c. 72.]

Instruction No. 10, for the State, is as follows:

“Gentlemen of the jury, the court instructs you that he who wilfully, that is, intentionally, uses upon another at some vital point, a weapon, to-wit, a knife, a deadly weapon, must, in the absence of qualifying facts, be presumed to know that the effect is. likely to be death, and knowing this must be presumed to intend death as the probable and ordinary consequences of such an act, and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart.”

Defendant criticizes this instruction on the ground that it was for the jury to find from the evidence whether the knife used was a deadly weapon, and not for the court to declare as a matter of law.

The information was drawn under section 1847, Revised Statutes 1899, which provides: “Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not exceeding ten years.” It was held in the case of State v. Keele, 105 Mo. 38, that a felonious stabbing of another, with intent to kill, constituted one offense under said section, and that when the assault is charged to have been made with a certain knife, it is not necessary to also charge that said knife was a deadly weapon, as the statute as to that offense was silent as to the character of the weapon used. In State v. Laycock, 141 Mo. 278, 279, and State v. Bond, 191 Mo. 555, the same distinction is maintained between the first clause of the statute, which makes the shooting at or stabbing another one offense, and an asault with a deadly weapon, another and distinct offense. As said in State v. Harris, 209 Mo. l. c. 438, “the uniform construction placed by this court upon the first clause of section 1847 has been that it is not necessary to allege that the instrument with which the defendant stabs another is a deadly weapon, the allegation that the knife with which the defendant in this case stabbed the prosecuting witness was a deadly weapon was unnecessary and can be treated as surplusage, and it was not essential to prove that it was a deadly weapon to sustain the charge in the information, and, therefore, it was not necessary for the court to submit to the jury the question whether such knife was or was not a deadly weapon.” In State v. Bowles, 146 Mo. l. c. 13, it is said: “A deadly weapon is any weapon or instrument by which death would likely be produced, when used in the manner in which it may appear it was used in the affray. ... It does not follow because no witness testified to seeing the knife, or detailed its exact dimensions, there was no proof as to its dangerous or deadly character. The deadly effect it produced was confirmation strong of its lethal qualities.” However, in the case of State v. Harris, supra, wherein an instruction like to the one under discussion was given, such instruction was held erroneous for the reason that the proof in that case was such that it could not he assumed as a matter of law, either from the size of the knife used, or from the wound inflicted, that such knife was a deadly weapon, and that the court erred in instructing the jury that “he who uses upon another at some vital part a deadly weapon of any kind, must in the absence of qualifying facts he presumed to know that the effect is likely to produce death, and knowing this must he presumed to intend death,” etc., without leaving to the jury the determination of the question whether the knife used was in fact a deadly weapon, before indulging such presumption. The ruling in that case, whether or not consistent with the prior ruling that it was unnecessary to allege or to prove that the knife with which the prosecuting witness was stabbed was a deadly weapon, does not affect the case at bar, for here the proof of the deadliness of the weapon used (if such proof was necessary to warrant the presumption of malice, which we do not think), was of a different and much stronger character than that in the Harris case. In that case the knife used was a small pocket knife, and there was no proof that the two wounds inflicted, or either of them, was of a dangerous character, although it appeared that the prosecuting witness was seven or eight days in bed as a result of such wounds. In the case at bar, while there does not appear any evidence as to the size or dimensions of the knife used, it is shown that the wounds inflicted were dangerous, that the prosecuting witness was confined to his bed four weeks on account of said wounds, and received regular medical attention during that time. The physician who attended him and examined his wounds testified as follows:

‘They carried him in the office, and he was very muck exhausted, and he was bleeding from six wounds. Pie bad seven, but one there wasn’t a great amount of blood coming from, but one that particularly drew our attention was one in tbe side that came in about one and tbree-fourtbs inches of tbe spinal column, and cut a rib into and penetrated tbe bowels. That is generally considered a dangerous wound. Then be bad a stab wound right behind and under bis shoulder that was bleeding profusely.
“Q. How deep'was that? A. To tbe bone.
“Q. Did that strike tbe shoulder blade? A. Yes-, sir, and then kinder bordered down; and be bad one just over the heart, about one and three-fourths inches. This wound went to tbe ribs and seemed to have been cut a little glancing, and cut down and then came out, cutting tbe muscular tissue down to the bone; and then there was three on his arm which were not very dangerous, and then bis two fingers were cut to tbe bone.”

In answer to tbe question whether or not tbe said wounds were dangerous and likely to produce death, tbe witness said: ' “Yes, sir, a wound is considered dangerous. This wound in tbe side would have killed him under conditions.”

In tbe light of this and other evidence herein-before stated, and in conformity to our views previously expressed, we must bold that tbe giving of said instruction numbered 10 was not error. It might also be said, in passing, that tbe language of tbe instruction in tbe Harris case, supra, was more general than in this, tbe words as to tbe weapon being “a deadly weapon of any kind,” while in tbe instruction in this case tbe weapon “a knife,” is specifically mentioned.

Tbe defendant contends that tbe court erred in refusing to give instructions “A” and “B,” asked by him. These instructions were merely as to tbe presumption of defendant’s innocence, and as to tbe information being a mere formal charge, and no evidence of defendant’s guilt. It is sufficient to say, in answer to tbe said contention of defendant, that tbe matter of said refused instructions was fully and properly covered by other instructions given by the court.

It is insisted by defendant that “the court committed reversible error in compelling the defendant, over tbe objections of bis counsel, to testify to things on which he was not examined in his examination in chief,” and in confirmation of defendant’s statement in this regard he refers us to page 108 of the record. In that and succeeding pages the prosecuting attorney, on cross-examination, questions the defendant with respect to the result of an examination of his wounds, which examination had been made by a Mr. Wilson, in the jail, the morning after the fight, and also as to defendant’s conduct on that occasion. The defendant, in his direct examination, testified that one Abe Wil-' son, who in another place is called “Doctor,” visited him in the jail, examined his wounds, and gave him some liniment therefor, but that the examination given him was slight. “He just pulled down my shirt, and fingered around some, and said this wasn’t broken,” the reference doubtless being to the shoulder blade, which according to defendant’s testimony was broken. The prosecuting attorney, in cross-examining the defendant, asked him if he did not tell Wilson, while examining his wounds, that he was not hurt much, and the defendant answered, “I don’t think I did.” Then the question was asked if he, the defendant, did not walk on his hands and feet all over the floor at the time of his examination by said Wilson. To this question defendant’s counsel objected on the ground that “the matter was not gone into in the direct examination.” The court refused to sustain the objection, and told the prosecuting attorney to ask the question, to which action of the court defendant duly excepted. The defendant’s answer to said question was, “I don’t know—I was feeling mighty bad along about that time — it was a cold place in there.”

This court, in construing the statute providing for the cross-examination of a defendant in a criminal case, had repeatedly said: “When the statute says, ‘A defendant shall be liable to cross-examination as to any matter .referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case,’ it does not mean that the defendant can take the stand, and in answer to one or two -well-prepared interrogatories sweep away the whole structure of the State’s ease, and then remain immune from a cross-examination on the issue thus tendered. Cross-examination, from time immemorial, has been the great test of credibility of any witness.” [State v. Myers, 221 Mo. 598; State v. Miller, 190 Mo. l. c. 463; State v. McKenzie, 102 Mo. l. c. 632; State v. Barrington, 198 Mo. l. c. 81; State v. Cunningham, 154 Mo. l. c. 174.] The cross-examination need not be confined to a mere categorical review of the matters stated in the direct examination, but the same may be employed as a means to test the truth of the evidence given in such direct examination. [State v. Myers, supra; State v. Miller, 156 Mo. l. c. 85; State v. Fisher, 162 Mo. l. c. 169.] We do not think the court committed error in overruling- counsel’s objection to the question alluded to, and the point is ruled against the defendant.

A further insistence is that the court erred in refusing to grant the' defendant a new trial on newly-discovered evidence. In support of this ground of his motion for new trial the defendant filed an affidavit as follows:

“Jesse P. Keener, being duly sworn, upon his oath says that since the trial of his ease in the circuit court, he learned of the evidence of William May den, who resides at Billings, Missouri; that he is informed, and believes, that he can prove by the said William May-den that the next morning, very early, he picked up ^o knives at the exact place of the fight with Barney Gregory, and that he believes that he can prove that one of the knives is the- knife that belongs to Barney Gregory, the prosecuting witness, and the one that said Gregory cnt the defendant with on the night of the fight; that he had no knowledge of the facts known by the said William Mayden, and that he has used dne diligence in preparing for trial, and that had he known that Mayden was so material a witness he would have procured his evidence on the trial of said cause; that said Mayden’s evidence can be secured in support of his motion for a new trial, and defendant prays the court to give him time to procure the evidence of the said William Mayden in support of his motion for new trial.” This affidavit was signed and sworn to by the defendant. Counsel for defendant also filed an affidavit of about the same tenor, except that he intimates that he learned of this evidence before the conclusion of the trial; that he went immediately to the court and informed him of what Mayden would swear, “and asked the court that he be permitted to procure said Mayden’s evidence, and the court said he would see, and that was the last of the matter.” Accompanying said affidavit was one by the said Mayden, to this effect: that about daylight, the morning after the fight, he visited the scene thereof, and found and picked up two pocket-knives there; that afterwards Barney Gregory came to him and asked the affiant to give him his knife, but that he refused to do so; that he never told the defendant or his attorney that he found said knives but that he told the prosecutor of such fact, and that the prosecuting attorney did not subpoena him as a witness; that he, the affiant, was not related to any of the parties interested in the proceedings.

The frequently-announced rule of this court with respect to affidavits in support of a motion for a new trial on newly-discovered evidence is as follows: “The party must show, first, that the evidence has come to Ms knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that it is not cumulative only; fifth, that the affidavit of the witness himself should be produced, or its absence accounted for; and, sixth, that the object of the testimony is not merely to impeach the character or credit of a witness.” [State v. McKenzie, 177 Mo. 699; State v. Nettles, 153 Mo. 468; State v. Musick, 101 Mo. 260; State v. Welsor, 117 Mo. 570; State v. McLaughlin, 27 Mo. 112.]

It will be seen that the affidavit of the defendant falls short of showing that the evidence alluded to was so material.that it would probably produce a different result if the new trial were granted, o,r that the object of such testimony was not merely to impeach the character or credit of a witness.

Indeed, it is difficult- to see how such evidence, if introduced at the trial, could produce a different result. Exclusive of his own testimony, five witnesses testified for defendant at the trial, none of whom stated that the prosecuting witness had a knife in his hand at the time of the difficulty. These witnesses were all close by the combatants during the fight, and detailed all that occurred, and if the prosecuting witness had a knife in his hand it is beyond the bounds of probability that they could have missed seeing it, or, having seen it, have overlooked mentioning such fact while testifying for the defendant. There was an electric light near by, and there was nothing to prevent their seeing all that occurred. One of defendant’s said witnesses testified that he drew the combatants apart, and took from the defendant the knife he had used upon the prosecuting witness, and kept the same, but he did not mention or intimate that Gregory had a knife.

In view of such evidence, it can hardly be said that the newly-discovered evidence mentioned in the affidavits, if introduced at the trial, would he of any benefit to tbe defendant. Besides, it is shown to be merely cumulative, and as such falls short of fulfilling the requirements as to newly-discovered evidence. The court, therefore, did not err in refusing to grant defendant a new trial on the ground mentioned.

We have closely examined the record, and find no reversible error therein. The judgment should be, and is, affirmed.

All concur.