author: FABIS, J.

text:
    THE STATE v. JOHN KANUPKA, Appellant.
    Division Two,
    February 19, 1913.
    1. APPEAL: No Specific Assignment. In a criminal case, though tliere are no specific assignments of error, the court on appeal, where the record contains the bill of exceptions, will examine the record.
    2. NO ALLOCUTION: Not Reversible Error. The lack of an allo-cution in the judgment and sentence is cured by statute, where-either a motion for a new trial or a motion in arrest is filed and heard, for then the statutory necessity for allocution ceases to-be mandatory, and becomes directory only (Sec. 5264, it. S. 1909).
    8. WEIGHT OF EVIDENCE: For Jury. Where there is substantial evidence -of defendant’s guilt, its weight is for the jury, though that for him if true makes him the injured party.
    4. OBJECTION: Not Specific. Unless the objection to the admission of evidence is specific, its admission cannot be urged as-error on appeal.

      5. EVIDENCE: Res Inter Alios: Hearsay. Where a daughter of defendant, in his prosecution for an assault with intent to do-great bodily harm with a deadly weapon, had testified that she; had taken a pistol out of the pocket of the prosecuting witness;, it was not error to refuse to permit a police officer to testify where she got the pistol, no exception to the rule that what she said was hearsay and hut res inter alios appearing.
    6. REMARKS OF COUNSEL: Not Preserved. If the remarks of the prosecuting attorney are not preserved in the record it cannot be held that they were improper.
    Appeal frorfi. St. Louis City Circuit Court. — Eon, George G. Eitchcocic, Judge.
    Affirmed.

      Leahy, Saunders & Barth for appellant,
    (1) The defendant is presumed to be innocent of the crime charged against him, and unless there was substantial evidence of his guilt the court should not have submitted the case to the jury, and the defendant’s requested instruction should have been sustained. State v. Young, 237 Mo. 176; State v. Scott,. 177 Mo. 665. (2) Where it appears that the result, obtained by the verdict must have been ascribed to-prejudice, passion or partiality, and not to that calm-, weighing of the facts in evidence which should always', characterize the deliberations of a jury, the verdict; will not be allowed to stand. ' State v. Primm, 98 Mo:, 372.; State v. Castor, 93 Mo. 243.

      Elliott W. Major, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the States
    (1) It was within the province of the court to> reduce the diiration of the punishment from three-years’ imprisonment, as assessed by the jury, to two-years and six months, and then to enter judgment upon the verdict of the jury as modified. Sec. 5257, E. S. 1909; State v. Moses, 139 Mo. 220; State v. Tull,. 119 Mo. 421. (2) The only evidence offered by the defendant which was excluded is that where the defendant undertook to prove by the officer, Laidle, what defendant’s daughter had said to him as to where she g’ot the pistol offered in evidence. This was hearsay and very properly excluded by the court. State v. Levy, 168 Mo. 521; State v. Ilathhorn, 166 Mo. 229; State v. Huff, 161 Mo. 488. (3) It is urged that the verdict is contrary to the law and the evidence. This contention is not supported by the evidence in.the case. The State offered evidence tending to prove every material fact essential to establishing defendant’s guilt, and under appropriate instructions the jury returned a verdict of guilty. This court will not convert itself into a trier of facts and undertake to ■find a different result from that of the jury. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 199 Mo. 100; State v. Williams, 199 Mo. 137. (4) The alleged improper remarks are not set out in either the bill of exceptions or the motion for new trial, whereas they should have been incorporated in both in order to be reviewable. State v. Jeffries, 210 Mo. 337; State v. Baker, 209 Mo. 451; State v. Clapper, 203 Mo. 384. (5) The record expressly shows that no exceptions were saved to the giving of any of the instructions by the court, nor is any exception taken to them in the motion for a new trial; therefore they are not before this court for review. State v. Waters, 156 Mo. 132; State v. Brown, 168 Mo. 449; State v. Meadows, 156 Mo. 110; State v. Gregory, 158 Mo. 139.
   FABIS, J.

Upon an information, duly verified, and filed by the assistant circuit attorney in and for the city of St. Louis, at the April term, 1911, of said court, charging defendant with assault with intent to do great bodily harm upon one Alfred Gunners, with a deadly weapon, lie was, at the same term of said court, convicted of said offense and Ms punishment assessed by a jury at three years’ imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the court, under the provisions of section 5257, Revised Statutes 1909, reduced the punishment as assessed by the jury to two and one-half years’ imprisonment in the penitentiary. Sentence was duly imposed in accordance with the verdict and order of the court. From which judgment and sentence defendant has prosecuted Ms appeal to this court.

The evidence for the State tended to prove that the prosecuting witness, Alfred Gunners, was a married man, living on the 13th day of March, (the day of the alleged assault), at No. 5051 South Thirteenth street in the city of St. Louis. The defendant, John Kanupka, with his family, lived in the next block.

About seven o’clock on the evening of March 13, 1911, the prosecuting witness, Gunners, went to the residence of the defendant to see Sylvester Kanupka, a son of the defendant, to talk with him about some insulting remarks which Gunners stated the boy had made to his (Gunners’) wife and to ask the said Sylvester to refrain from such character of remarks. Gunners testified that when he knocked at the door of the defendant’s home it was opened by the defendant, and that he, Gunners, asked defendant if his son was at home. Defendant, who was a Polander, and who did not speak English very fluently, replied that he was not, but inquired what Gunners wanted. Gunners told him that he wanted to see the boy, Sylvester Kanupka, but that if he was not at home he would come back again and see him. Again inquiring of Gunners what he wanted with the boy, Gunners told Mm, whereupon defendant began cursing,- and Gunners remarked: “Man, what is the matter with you? Can you say one word I ever done to you?” Kanupka then began talking in Ms native tongue and slammed the door in Gunners’ face as he walked out. As Gunners walked out of the yard and was endeavoring to hook the gate, he testified that Kanupka “sneaked up behind me with one of them machinist’s hammers weighing about a pound and a half, or two pounds, and hit me on the head with it.” That the blood ran ■down his face, but the lick did not knock him down, and that he and defendant began fighting. While they were fighting the defendant’s wife and three or four of Ms largest children got on top of the prosecuting witness and held Mm down. Gunners testified that he grabbed with his left hand defendant’s hammer which he was swinging at him, and quoting his language, says: “When he got me down he simply beat the life out of me. He cracked my shoulder bone; ,1 told Mm ‘my arm was broke; for God’s sake quit, now;’ he hit me once here, that knocked me unconscious.” Gunners testified that he was bruised about his side, knees and kidneys; that he was in bed under the care of a physician for about two weeks, and that it was four weeks before he could walk without a cane. About the time Gunners regained consciousness, his wife came dbwn and he was dragged home by her and his brother-in-law. Gunners denied that he made any assault whatever on Kanupka, or that he had a pistol with him at the time he went to Kanupka’s home.

Dr. IT. E. Livingston corroborated the prosecuting witness as to treating his wounds and as to the extent of them; stated that the character of the wounds received by the prosecuting witness were such as could have been inflicted with some kind of a blunt instrument. The physician further testified that in his opinion the injury to Gunners’ shoulder was a permanent one.

The wife of the prosecuting witness testified that when she heard her husband screaming for help she went to Kanupka’s bouse; that she saw defendant hit her husband on the hip with a hammer while he was lying with his face on the ground; that she tried to get her husband up, but defendant hit her in the face with his hand; that she ran home, returning with a pistol, and that the defendant’s son hit her in the back'of the neck and the defendant hit her in the face; that they took the pistol away from her, and that she then, went into the street and hollowed for help, and that her brother-in-law came and helped her husband up and the two of them assisted him home.

It also appears from the evidence that although the families were only slightly acquainted, Kanup-ka’s family were unfriendly to Gunners and his family, because Mrs. Gunners had been a witness against one of the defendant’s boys in the police court a short time prior to the difficulty.

Another witness as to a part of the details of this difficulty was Harry Gomache. His testimony to a slight extent corroborates that of Mrs. Gunners as to when and where she got the pistol.

The defendant undertook to prove by himself, his ' wife, his son, his daughter and his wife’s daughter-in-law the defense of self-defense; that the prosecuting witness made the first assault and attempted to draw a pistol, but was prevented by their combined efforts. The defendant denied having or making use of a hammer on this occasion. He admitted, however, that he had no bruises upon him as a result of the difficulty.

Defendant’s daughter, Anna Kanupka, testified that during the difficulty the prosecuting witness, after striking defendant, attempted to draw his revolver from his hip-pocket; that her attention was attracted to it by the screaming of her mother, and that after some little time, while her father and Gunners were engaged in the difficulty, she succeeded in getting the pistol out of Gunners’ pocket; that it was immediately taken up stairs, and turned over to a policeman upon his arrival shortly after the difficulty.

A police officer produced upon trial a loaded pistol which he stated he obtained at the home of the defendant shortly after the difficulty.

Defendant also offered some slight evidence touching his previous good reputation for peace and order.

We deem this a sufficient statement of the facts to enable us to dispuse of the legal questions presented.

OPINION.

• The brief of defendant containing an assignment of errors, filed here by learned counsel for defendant, makes such assignment generally; not specifically. In the last analysis, these assignments are two, viz.': (a) that the evidence was not sufficient to go to the jury, and (b) that the court erred in overruling defendant’s motions for a new trial and in arrest. But as in duty bound we-have, as the statute enjoins (Sec. 5312, B. S. 1909), carefully examined the record, which includes the bill of exceptions, made a part of the record by proper and timely orders.

Learned counsel for defendant confuse, inadvertently no doubt, the office and contents of a motion in arrest with those of a motion for a new trial; since the motion in the record, styled a “motion in arrest,” is but a copy of his motion for a new trial. The distinct offices of these two motions are prescribed by statute. [Cf. Sees. 5284 'and 5286, B. S. 1909.] Upon the statutory prescription slight enlargements germane to such prescriptions have been engrafted by practice. For illustration, attention may be properly called to error or omission in the record proper by an allegation in the motion in arrest, in form substantially thus, “that upon the record the judgment is erroneous.” No such guide-post pointing to specific error lias been planted for us in the case at bar.

We are required, therefore, to examine defendant’s motion for a new trial, as well as what we may call for convenience the record proper. Examining the latter we find an information, duly filed and sufficient in form and substance ; a proper and formal record of the plea of not guilty; an appeal “to the country” by both defendant and the State; a legally impaneled jury sworn to try the case, and a verdict of guilty returned, which .verdict meets the requirements of the strictest approved form. While the judgment and sentence lacks the allocution, it is otherwise sufficient. The lack of

allocution is cured by statute, since where either a motion for a new trial or a motion in arrest is filed and heard, the statutory necessity for allocution ceases to be mandatory and becomes directory only. [Sec. 5264, E. S. 1909; State v. Nagel, 136 Mo. l. c. 51.]

Turning to defendant’s motion for a new trial, we find him complaining of the court’s refusal to sustain his demurrer to the evidence, and urging also that the verdict is contrary to the “law and the evidence.” These objections are cognate and may be considered together. The evidence was conflicting. If we are to believe the witnesses for the State the defendant was guilty of a most unprovoked and outrageous assault, inferably from the evidence, from no present cause or provocation, but to satisfy his revenge for an insignificant and fancied wrong. If we believe the witness for the defendant, who were, as to all the salient facts,, his wife and children and the daughter-in-law of his wife, he is an innocent martyr, who did naught but protect his home and person from an armed and obsence trespasser who attacked him in his own home and in the bosom of his family. Fortunately, we do not have to pick and choose with so great latitude and chance of error. The jury as the triers of fact resolved this otherwise so dangerous a doubt against the defendant. Face to face with the witnesses, they saw them, heard them and observed their manner, and it is for them to weigh the witnesses’ credibility and not for us. There is ample evidence to sustain the verdict, and we are not disposed to disturb it. So' we rule this point against defendant.

Complaint is made also that the court erred in admitting incompetent, irrelevant and immaterial evidence for the State, and in refusing to admit compe-, tent, relevant and material evidence for the defendant. These complaints are in the state of the record related in kind, and may be considered together. This assignment is general, and an exhaustive examination of the transcript of the evidence, as preserved in the bill of exceptions, discloses a record singularly free from the vice charged. Less than half a dozen objections and exceptions were made and saved, and none, except one hereinafter adverted to, properly made and saved. Either the question asked was withdrawn, or not answered, or specific ground of objection was not made. Absent specific grounds of objection, ab- sent error. [State v. Goddard,. 162 Mo. 198.] Searching the transcript we find one exception which deserves passing notice. Upon the trial defendant undertook to prove by one Laidle, a police officer, certain statements made by Anna Kanupka, a daughter of defendant and a wit-11688 111 ^11S CaSe ^01’ defendant, as 1° where she had gotten the pistol. Anna Kanupka had testified in the case already that she took the pistol out of the pocket of the prosecuting witness Gunners. Laidle was asked by counsel for defendant: “Q. Did she say where she got it [the pistol]? A. She said she took it out of-State (interrupting): I object to what she said as being incompetent. Court: Objection sustained. Defendant saved bis exceptions.” No exception to the rule tbat tbis was hearsay and but res inter alios (as for example, tbat it was a part of tbe res gestae) appearing from tbe record, we see no escape from tbe conclusion tbat it was not admissible and tbe court so bolding ruled correctly. [State v. Levy, 168 Mo. 521; State v. Hathborn, 166 Mo. 229.]

Complaint is made tbat tbe verdict of tbe jury was the result of improper remarks of tbe prosecuting attorney, but as not one word . or syllable of remarks, either proper or improper, is shown by tbe record, we must rule tbis point against defendant.

Finding no error in tbe record, tbe judgment is affirmed and tbe sentence imposed by tbe trial court, ordered to be executed. Brown, P. J., and Walker, J., concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. ARTHUR BROWN, Appellant.
    Division Two,
    February 19, 1913.
    1. EVIDENCE: Statements Out of Court: Bolstering up Testimony: Improper Hearsay: Harmless. ' Testimony that a witness on other occasions made statements similar to what he has testified is not, as a general rule, admissible on re-direct examination, since it is ordinarily incompetent for a witness to corroborate his own testimony by showing that on former occasions .outside of court his statements were the same as those testified; and where the questions on cross-examination were carried no further than an inquiry of the witness if he had talked oyer the facts of the homicide with the prosecuting attorney and certain police officers, the prosecuting attorney was not authorized on re-direct examination to ask the witness if he had ever at any time made a different statement to .any of those officers or any one else. But the error is only technical, and, under the circumstances of this case was not prejudicial. '
    2. ALIBI: instruction. An instruction telling the jury that “if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time'1 and place where the crime is charged to have been committed, you will acquit the defendant,” in unmistakable language tells the jury the necessary elements of an alibi.

    S. ARGUMENT TO JURY: Not Assigned in Brief: Considered Nevertheless. Although the remarks of the prosecuting attorney in his opening argument ,to the jury are not urged in defendant’s brief, yet, being properly preserved in the record, they are nevertheless considered in this case.
    4. -: Murder for Money. Where a man entered the office where deceased was at work and where it was generally known that money was daily received and was frequently seen lying on deceased’s desk, and with pistol drawn ordered the employees to get quickly into a vault and before deceased could do so, shot him, it was not error for the prosecuting attorney to tell the jury it was a “murder for money; it was for blood money.”
    5. - — : Discrediting Defendant’s Main Witness: Should Be In Dock. In his closing argument to the jury, in a case of murder, where the defense was alibi, the prosecuting attorney said that defendant’s main witness “deserves to be in the dock with the defendant in this ease. I say it is in the evidence in this case.” There was no evidence to sustain the remark. Defendant’s counsel objected that “there is no evidence in the case to warrant it;” whereupon the court said, “Do not argue it; you have argued the case once.” Held, that to discredit the witness’s testimony was to practically destroy the defense, and that such cannot be done in the absence of testimony. The remark was prejudicial, tending to inflame the minds of the jury against the witness and to cause them to give little or no credence to his testimony; and the remarks of the court had a tendency to aggravate rather than to lessen its prejudicial effect.
    6. -: No General Rule. It is difficult to formulate a general rule defining the limit to which prosecuting attorneys may go in their arguments to juries. The extent of the prejudice caused by them must be measured by the.facts of each case.
    Appeal from Jackson Criminal Court. — Hon. Ralph S. Latshaw, Judge.
    REVERSED AND REMANDED.

      Cameron L. Orr and Horace 8. Kimbrell for appellant.
    (1) The eonrt erred in permitting the State to prove by witnesses Pnlhamns and Brown that they made repeated statements outside of court similar to the statements made in court under oath. State v-Brown, 17 Mich. 435; DeShon v. Ins. Co., Mete. 199 1 Greenleaf, Ev., sec. 469; Starkey, Ev., p. 187; Rix v. Parker, 3 Doug. 242; Berkley — Peerage case, 2 Phil. Ev. (4 Ed.) Cowen and Hill’s Notes, p. 974, note 2; Robb v. Hockley, 23 Wend. 50; 2 Russell Or. 938-9, 763; 5 Cow. 314; State v.' Taylor, 134 Mo.' 154. (2) Hnder the facts of this case, the instruction given on alibi is confusing, misleading and ambiguous. Defendant, according to his own admissions, was at the place — if “place” be a term broad enough to take in the Missouri Pacific freight house and grounds — and in this sense he was there at the time also. Defendant denies he was in the cashier’s office at the time of the shooting. State v. Bateman, 196 Mo. 39; State v. Taylor, 118 Mo. 153; State v. Harvey, 131 Mo. 339. (3) The court erred in failing to rebuke the prosecuting attorney for arguing to the jury that Lafe Fowler, defendant’s chief witness, upon whose’evidence he relied to establish his innocence, was himself a party to the murder of Arthur Underwood,, and was so guilty under the evidence, that he should be a prisoner in the “dock” on trial for his life, instead of being recognized as a reputable witness,, whose testimony the jury should fairly consider in. determining the guilt or innocence of defendant. The-court erred in giving this judicial sanction by saying - in the presence of the jury, “I see nothing objectionable to it.” State v. Wana, 245 Mo. 558; State' v. Ulrich, 110 Mo. 350; Cameron v. Cameron, 162 Mo. App. 110.

      Elliott W. Major, Attorney-General, and Ernest' A. Green, Assistant Attorney-General, for the State.
    (1) Instruction 8, with reference to alibi, has repeatedly met with the sanction of this court. State-v. Williams, 141 Mo.- 321. (2) Under the testimony-in the case and the facts as brought forth from the witnesses, neither of the statements made by the assistant prosecuting attorneys were anything more or less than legitimate arguments of the testimony in the case. No serious objection can be urged against either of the statements. In order to justify a reversal of a judgment in a criminal case because of improper remarks by an attorney for the State, it should appear to the court that the remarks complained of were prejudicial to defendant, and probably had something to do in bringing about the verdict reached by the jury. State v. Hibler, 149 Mo. .484.
   WALKER, J.

The prosecuting attorney of Jackson county, on December 20, 1911, filed an information in the criminal court of that county,, charging the defendant with murder in the first degree, in the shooting and killing of Albert Underwood on December 1, 1911. At the January term, 1912, of said court, the defendant was tried, found guilty of murder in the first degree, and ' his punishment assessed at death. Timely motions for a new trial and in arrest of judgment were filed and overruled, and an appeal has .been perfected to this court.

The facts disclosed by the evidence are as follows :

Albert Underwood, the deceased, was employed in the auditing department of the Missouri-Pacific Rail-waN Company at its freight offices in the West Bottoms in Kansas City, _ Missouri. His particular duties were to receive collections, in the cashier’s office of the said department, on account of freight. The cashier’s office was on the first floor of a three-story building, the entrance to same from the street being through a general hallway in which there were stairs leading to the upper floors. About twenty-five feet from this main entrance a door opens into the cashier’s office where Underwood was employed, his desk being located in the southeast corner -of the office to the right of the cashier’s window. At the time of the killing, a yonng man named Barnes was at work at a desk in the opposite corner to the right of where Underwood was employed; to the left of Barnes was a desk occupied by a man named Proctor, and behind the door which entered the room from the main hallway and near the corner, was another desk occupied by a man named Pnlhamus. Just in the rear of Underwood’s desk was another occupied by a man named Brown, and near Brown’s desk Clayton, another employee of the railroad, was standing.

At about 5:40 o’clock on the evening of December 1, 1911, the door of the cashier’s office leading from the main hall was opened, and one of the witnesses present states that three negro men entered, two of them stopped just inside the door, and that the third, who was the only one seen by the other witnesses, was the defendant. He walked into the room behind the chair where Barnes was sitting, and with a revolver in hand said to Barnes, “Get into the vault, and be quick about it.” The vault referred to was adjacent to the cashier’s office. The defendant then shot at Barnes and the bullet grazed his neck, passing through the right sleeve of his shirt. Defendant then struck Barnes as he was rising from his chair, and felled him to the floor. Turning to Pulha-mus, who was partially behind the door, and pointing his pistol at him, defendant ordered him to get back into the vault. Pulhamus did so, backing towards the vault. While this was occurring, Underwood, th»e •decased, was standing near his desk where he had-been checking off freight receipts. The defendant then pointed his pistol at Underwood, saying, “Damn it, get back into the vault.” Almost simultaneously with this command the defendant fired the pistol, striking Underwood in one of* his hands. Underwood exclaimed, “Por G-od’s sake give me time to get into the vault! ’ ’ With that the defendant shot again, striking and mortally wounding Underwood, who staggered out of the room into the vault. Of the persons employed with Underwood at the time of the shooting, the defendant was identified by Barnes, Pulhamus, Brown and Clayton. In addition to Underwood, these were all of the persons in the room at the time, except one Proctor, who stated he was so frightened he did not stop to take a look at the man who was doing the shooting, but got out of the room as soon as he could after the trouble began.

At the time defendant entered the room, there were lying around on the cashier’s desk several hundred dollars in money and checks. Defendant had previously been employed in the same building, was familiar with the location and arrangement of the offices and where the money was kept.

Immediately after the shooting, defendant tried to get out of one of the windows, but failing in this turned and ran out of the door. In addition to those who witnessed the killing, and identified defendant, he is also identified by W. B. Lentz, the local agent of the railway company, who states that while he was in' his office on the second floor of the same building-in which Underwood was killed at about 5:40 p. m. a young man rushed in saying that “the cashier’s office was being held up and robbed;” that witness rushed out of his office and ran down stairs when he saw a negro man running through the hall towards the front door; that witness saw defendant at the police station on the following Monday and identified him as the man he saw running through the hall; that witness went, immediately after seeing the man run through the hall, to the cashier’s office and found Underwood shot and his associate employees attempting to hold him up to keep him from falling on the floor; that witness called a physician and an ambulance and subsequently Underwood was carried out on a stretcher, pnt in the ambulance and conveyed to a hospital.

Vincent Kennedy, a clerk employed in one of the, offices in the same building in which Underwood was killed, while sitting in his employer’s office, heard two or three shots fired; he ran to the door and partially opened same, and saw a negro man coming out of the door of the cashier’s office. When the man came within four or five feet of witness, the latter saw that he had a pistol in his right hand and something in his .left; that upon the man’s seeing the witness, the former said, “Step back, you son-of-a-bitch, and don’t movethat the witness had a fair opportunity at that time to see the man and identifies him as the defendant now on trial.

A hoy named Ward, also employed at the building where the killing occurred, testified that a few minutes before the shooting he saw defendant in the building and had a conversation with him. Another witness named Oscar Underwood stated that a few minutes after the time testified to by Ward he saw the defendant and a janitor named Powell talking to each other in whispers in the'toilet room at the end of the floor on which the cashier’s office was located.

Defendant’s principal witnesses to establish an alibi — which was the substantial defense in the case - — are himself and a negro man named Lafe Fowler.

The substance of defendant’s testimony is that on the evening Underwood was shot, át 5:20 or 5:25 o’clock, defendant went to a building near the one in which the shooting 'occurred, to collect a small sum of money due him from the janitor named Feather stone Powell. Failing to accomplish the purpose of his visit defendant said to Powell, ‘‘I am going over to Lafe Fowler’s,” the latter being the janitor employed in what was known as the Superintendent’s Building, which, was near the one in which the shooting occurred; that Powell replied, “Gro over and wait and I will come by and pay you your money.” Defendant said, “All right,” and started at once to Fowler’s; that it was about 5:30 o’clock, or possibly a few minutes later when he reached Fowler, remaining with the latter in a room on the second floor until 6 o ’clock, when they left the Superintendent’s Building together. On their way out they passed two men engaged in conversation at the head of the stairs and Fowler spoke pleasantly to them. Upon reaching the front door of the Superintendent’s Building they saw an ambulance before the door of the building in which the killing occurred, and the body of a man being brought out of the building and placed in the ambulance, when it was driven away. Among others gathered about the ambulance defendant recognized Frank Wall, chief delivery clerk of the railway company, and immediately thereafter he and Fowler went to the eating house of a woman named Hattie Bell, where Fowler had been taking his meals, and that defendant waited for him but did not eat, saying that his mother would be expecting him for supper. That after Fowler had finished his meal, he and defendant went to Kansas City, Kansas, where they resided.

Lafe Fowler, a witness for the defendant, testified that he had been employed as a janitor in the Superintendent’s Building for nine years; that he had known the defendant eight years; that defendant came to Fowler’s room in the.Superintendent’s Building at about 5:30 or 5:35 o’clock on the evening the killing occurred; that Fowler was shining his own shoes when defendant came in, and after some common place talk, during which time Fowler was preparing, by changing his clothes, to quit work for the day, they left the building together at about 6 o’clock. As they went down the stairway they saw two men, a Mr. Hubbard and Mr. Daniels, employees of the railway company, standing engaged in conversation near the top of the stairway; that witness addressed them, saying, “Good evening, gentlemen,” to which they responded, “Good evening.” When witness and defendant went 'out of the Superintendent’s Building, they saw a man named Robert Benson, a clerk for the railway company, standing near the outside door on the steps, and an ambulance backed up to the curb before the building in which the shooting occurred and the body of a man being brought out and placed in 'the ambulance; witness said to Benson, “What’s up?” to which Benson replied, “I don’t know, Lafe.” Seeing a number of persons gathered around the ambulance, they went over there, when it was driven away and the crowd begun to disperse. Just at this juncture, witness says he asked Eugene LaRue, who was standing near by and was an accountant for the railway company, “what was going on.” LaRue’s answer is not shown by the record. Witness further says that just as he and the defendant were starting away, he saw Frank Wall, another railway clerk, who said to them, “What are you doing and where are you going?” to which witness replied, “We’re going down west, down St. Louis avenue;” that Wall walked a short distance with them, engaged in conversation in regard to the shooting, and that witness and defendant then went down to the eating house of Mrs. Bell, where the witness took his meals, and Wall went towards Liberty street. That the witness ate his supper at Mrs. Bell’s, and the defendant waited for him, after which they went to Kansas Oity, Kansas, where both resided; that witness was with defendant continuously from the time they met in the Superintendent’s Building at 5:30 p. m. until they parted for the night at Kansas City, Kansas.

Richard Beeson, a clerk of the railway company, says that on the evening of the shooting, sometime after five o’clock, Lafe Fowler shined his, Beeson’s shoes, in the latter’s office in the Superintendent’s Building.

Robert Benson, another clerk who was employed in the Superintendent’s Building, says that on the evening of the shooting at about six o’clock he saw Lafe Fowler and another negro man come 'out of the Superintendent’s Building where Lafe was employed; that when they came out an ambulance had been driven up before the building in which Underwood was shot. Witness positively recognizes Fowler as one of the men he saw, but says he paid no particular attention to the other.

Eugene LaRue, a railway accountant, saw Lafe Fowler and another negro man in front of the Superintendent’s Building just as Underwood was being-brought out to the ambulance but that he did not know who the man with Fowler was.

Frank Wall, chief railway clerk for the railway company, saw Lafe Fowler and another negro man a short time after Underwood’s body had been brought out and placed in the ambulance. The two were walking along, going north. Witness walked with them some distance and among other things asked them which way they were going. They said, ‘ ‘ towards the State line.” Witness left them, going westwardly.. The man with Fowler was the defendant, whom witness now sees in the court room.

Earl M. Daniels, an employee of the railway company, states that on December 1, 1911, at about six o’clock the evening of the shooting, he and another clerk named Hubbard were engaged in conversation at the head or top of the stairs in the Superintendent’s Building, when Lafe Fowler and another negro man passed them, going out. As they passed, Fowler said, “Good night,” which was his usual manner when leaving the building for the day. Witness does not know who the other man was.

W. W. Cooke, a former chief of police of Kansas City, Kansas, testified that the defendant’s reputation as a peaceable, law-abiding man was good.

John J. Dillon, a police officer of Kansas City, Missouri, testified that defendant’s reputation far general morality was bad and that at the time of his arrest defendant said, “I know what you are picking me up for — that Missouri Pacific stick-up.”

The errors assigned by defendant for a reversal of the judgment are: . 1st. That the court permitted the State to prove by witnesses Pulhamus and Brown that they had repeatedly made statements outside of court' similar to their testimony under oath.

2d. That the, instruction on alibi was confusing, misleading and ambiguous.

3d. That the prosecuting attorney was permitted in his closing argument to the jury to-state “that Fowler [defendant’s principal witness] deserves to be in the prisoner’s dock with the defendant.”

I. The first ground of error urged by defendant is in regard to the admissibility of the testimony of fkfe^cou °.Ut' the witnesses Pulhamus and Brown on hehalf of the State in answer to questions propounded to them by the prosecuting attorney ks to former statements made by them.

On cross-examination the witness Pulhamus was asked:

“Q. How many times have you talked this matter over with Mr. Boultt? A. I cannot say how many times. Q. A number of times? 'A. A number of times, yes, sir. Q. Also with Captain Stone and Raf-tery? A. Yes, sir.”

On re-examination by the prosecuting attorney the witness was asked: “Q. Mr. Pulhamus, just one question. Counsel asked you if you had talked this matter over with Mr. Boultt and with officers Raftery and Stone, and yon answered, yes, sir. A. Yes, sir. Q. Yon also talked that matter over several times with me? A. Yes, sir. Q. Iíave yon at any time to any of these gentlemen to me or to anybody else, given any statement of the facts in this matter within your knowledge other than yon have stated here to this, jury?

“Mr. Orr (connsel for defendant): We object to that as argnmentative and a cross-examination of his own witness.

‘ ‘ The Court: In view of your examination I will overrule the objection.

“Exception.

“Q, Have yon at any time in yonr conversation with Mr. Bonltt or with Captain Stone or Mr. Raf-tery, or myself, or anybody else, stated facts about this tragedy and what yon saw and observed other than yon have stated to this jury? A. Do yon mean any statement? Q. Have you made any different statement, stated any different from what yon stated 'to this jury? A. No, sir.”

The cross-examination of the witness Brown and his re-examination by the prosecuting attorney was practically the same as that of Pulhamus, to which like objection and exception were saved.

As a general rule, testimony that a witness has, on other occasions made statements similar to what he has testified to in the ease, is not admissible. .It is only where.it is evident that the witness is endeavoring to misrepresent the facts by reasons of his relation to the party or the cause that it is proper to show he has made similar statements before that relation existed. [State v. Taylor, 134 Mo. l. c. 155.]

It is only where a witness is assailed on the ground that he has stated the facts differently on former occasions that he may be asked to give the circumstances under which the statements were made, it being ordinarily incompetent for him to corroborate his own testimony by showing that on other occasions his statements were in harmony with those made on the trial. [Whar. Orim. Evid. (9 Ed.), sec. 492.]

The only question asked the witnesses on cross-examination was whether they had talked over the matter with certain parties named, and the inquiry was carried no further. This did not authorize the prosecuting attorney on re-examination to ask them if they had ever made any other than similar statements to those made on the trial. “It was bolstering up his statement in court by proof of a like statement out of court; and it was therefore open to all the objections to which hearsay evidence is usually.subject.” [Brown v. People, 17 Mich. l. c. 435.]

While the admission of this testimony was technical error, in view of the particular facts in this case, namely, that Pulhamus and Brown had been fully corroborated by several other witnesses as to their testimony in regard to the killing and their identification, of the defendant at the scene of the tragedy, reversible error was not committed in the admission of the testimony complained of because the defendant was not thereby injured, and we rule this point against the defendant.

II. The instruction on alibi complained of by the defendant is in the following language:

‘‘ The court instructs the jury that if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed (if you find a crime was committed) you will acquit the defendant.”

An instruction in these same words has been approved in State v. Davis, 186 Mo. l. c. 539, in which G-aNtt, J., speaking for the court, says: “This instruction was approved in State v. Adair, 160 Mo. 391, and while in State v. McGinnis, 158 Mo. 123, a different form was indicated as proper, it was not rnled that tlie same principle might not be expressed in fewer words or in different form.” In a later case this court has approved an instruction on alibi in tbe following words: “Unless you find and believe from all tbe facts and circumstances given in evidence tbe presence of defendant at tbe place of tbe alleged murder, and bis guilt beyond a reasonable doubt, you should acquit him.” [State v. Shelton, 223 Mo. 118, l. c. 137.]

Tbe principle to be deduced from tbe foregoing cases and many others is that tbe purpose of an instruction in regard to an alibi where that defense is interposed, is that tbe jury may be told in plain terms that, if upon a full consideration of all tbe evidence in tbe cause, they entertain a reasonable doubt of tbe presence of tbe defendant at tbe time and place of tbe alleged commission of tbe offense, they should acquit him.

Tbe instruction complained of does this in an unmistakable manner and we rule this point against tbe defendant.

III. Defendant complains of certain remarks of tbe prosecuting attorney in tbe opening and closing arguments to tbe jury. Tbe remarks in tbe opening argument are not urged in defendant’s brief, but are properly preserved in tbe record and should be considered.

Tbe remarks in tbe opening argument were: “Gentlemen of tbe jury, this is a murder for money.” And in saying later, in tbe same argument, in referring to tbe killing of Underwood: “It was for money. It was for blood money.” And in declaring in' bis closing argument, in a review of the testimony of Lafe Fowler, tbe principal witness for tbe defendant: “I tell you that that man Fowler deserves to be in tbe dock witb tbe defendant. I say it is in tbe evidence in tbis case.”

When tbe remark in tbe closing argument was made tbe following occurred:

Counsel for Defendant: “I suppose that all of tbis is objected to.”

Tbe Court: “Nothing objected to unless you object to it.”

Counsel for Defendant: “I object to tbe statement witb reference to Fowler. There is no evidence in tbis case to warrant it.”

Tbe Court: “Don’t argue it, you have argued tbe case once.”

Counsel for Defendant: “Is it overruled?”

Tbe Court: “You have argued your case once. Objection overruled.”-

Counsel for Defendant: “I beg your pardon. Exception. ’ ’

In regard to tbe remarks made in tbe opening argument tbe inference may be permissible that tbe killing was for money, no other motive- being shown, because it seems to have been generally known that tbe office where it occurred received money daily, and that it was frequently seen lying on tbe receiving clerk Underwood's desk, and that a number of bills was lying on tbis desk at tbe time of tbe killing.

Tbe remark of tbe counsel for tbe State in bis closing argument that tbe witness Fowler deserved to be in tbe dock witb tbe defendant, in tbe absence of any testimony to sustain it, and there was none, could not under tbe facts in tbis case have proved otherwise than prejudicial, in tending to inflame tbe minds of tbe jury against Fowler and in causing them to give little or no credence to bis' testimony. Tbe defense was an alibi. Fowler was tbe only witness aside 'from tbe defendant himself who testified unequivocally to defendant’s presence elsewhere at tbe time of tbe tragedy. To discredit Fowler’s testimony was to practically destroy the defense; this cannot be done in the absence of testimony.

The language of the court in overruling counsel for defendant’s objection to the closing remark had a tendency to aggravate rather than lessen its prejudicial effect. Instead of ruling directly upon the objection, the court said: “Don’t argue it, you have argued the case once;” and upon inquiry by counsel for the defense as to the ruling,-said.further: “You have argued your case once. Objection overruled.” This language reasonably construed, impliedly sanctioned the correctness of the remark objected to, when such remark was without foundation in the evidence.

It is difficult to formulate a general rule defining the limit to which prosecuting attorneys may go in their arguments to juries, and analogous cases afford little aid in this regard. The extent of the prejudice aroused in the minds of the jury by such remarks must, therefore, be measured by the facts in each particular case. Applying this test to the case at bar, we are of the opinion that the remark of the prosecuting attorney in his closing argument was of such a nature as to inflame the minds of the jury to the extent that they could not render a fair and impartial verdict under the evidence, and we.rule this point in defendant’s favor.

Entertaining these views, the judgment of the trial court should be reversed and the cause remanded, and it is so ordered. Brown, P. J., and Paris, J., concur.


author: EARIS, J.

text:
    Ex Parte GEORGE LEE.
    Division Two,
    February 19, 1913.
    1. HABEAS CORPUS: Petition. The petitioner in habeas corpus is bound to present with his petition for the writ certified copies of the sentences and judgments made and entered in the trial court in the several cases against him in obedience to which, he is imprisoned.
    2. - — : Age of Prisoner: Finding of Trial Court. Where the judgment of the trial court recites that defendant is over eighteen years of age, the presumption is that, nothing appearing to the contrary, the court acted upon proof in making its finding; and since the statute provides that it shall be the duty of the Supreme Court to remand the petitioner for habeas corpus if it shall appear that he is detained in custody “by virtue of the final judgment” of any competent court having criminal jurisdiction, the Supreme Court cannot undertake to try the question of petitioner’s age at the time he was sentenced, but must remand him to the custody of. the officer.

      Habeas Corpus.

    Prisoner remanded.

      Louis B. Nichols, Jr., for relator.
    The relator was under the age of eighteen years when the sentence was passed on October 22, 1912, and when commitment was delivered on- October 23, 1912, the said relator was in the custody of the jailer as agent for the warden of the penitentiary. Once having passed sentence on the relator, the judge had no more discretionary power. B. S. 1909, sec. 5267. If the judge had committed an error by assessing a punishment that the law forbids, the judge had a duty to perform, and that duty was to set the illegal sentence aside and sentence the prisoner according to law, viz., according to Sec. 1529, B. S. 1909. This section says that a person convicted under the age of eighteen years for an offense where the minimum punishment is less than ten years, cannot be sent to -the penitentiary, but must be sent to the Missouri Training-School for Boys. Ex parte Gray, 77 Mo. 160; People ex rel. v. Giscomh, 60 N. Y. 559; People ex rel. v. Jacobs, 66 N. Y. 559.

      Elliott W. Major, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for respondent.
    (1) Under Sec. 1529, R.. S. 1909, one pleading guilty cannot he considered as “convicted” until judgment has been rendered; and as defendant was over eighteen years of -age when sentence was pronounced,, his punishment was properly assessed at imprisonment in the penitentiary. Ex parte Kaufman, 73 Mo. 588; State v. Townley, 147 Mo. 205. In this particular case, the prisoner’s own affidavit shows that he was over the age of eighteen years on November 8-, .1912, the date of his re-sentence; he was therefore properly-imprisoned in the penitentiary. Ex parte Kaufman, 73 Mo. 588; State v. Townley, 147 Mo. 205. (2) The prisoner’s age on November 8, 1912, the date of the sentence under which he is now confined, is what determines the place of his confinement. Since therefore he was eighteen years of age at that time he is properly imprisoned in the penitentiary. State v. Townley, 147 Mo. 205; State v. "Watson, 95 Mo. 414. A person confined in the penitentiary will not be released on the ground he was under the age allowing such imprisonment unless the record of the trial court discloses such fact. Ex parte Kaufman, 73 Mo. 588. (3) The circuit court entering the judgment of sentence affirmatively found that defendant was over the age of eighteen years at the time of his sentence, and therefore its action on that finding of fact cannot be reviewed by habeas corpus, but only by appeal or writ of error. The writ is not to retry issues of fact or review the proceedings of a trial court. Ex parte Clay, 98 Mo. 583; Ex parte Buckley, 215 Mo. 99; State ex rel. v. Dobson, 135 Mo. 1. (4) In no event could the prisoner be discharged under the writ,, but if erroneously imprisoned in the penitentiary, as we deny, then it becomes the duty of this court to sentence defendant to the proper place' of confinement. R. S. 1909, secs. 2511 and 5316; Ex parte Gray, 77 Mo. 160; Ex parte Cohen, 159 Mo. 662;-State v. James, 194 Mo. 268.
   EARIS, J.

This is an original proceeding by habeas corpus, wherein George Lee, the petitioner herein, alleges that he is illegally restrained of his liberty and kept in custody in the state penitentiary by one Henry Andrae, the warden of said penitentiary.

In his return to the writ, the warden, after admitting that he has the custody of the petitioner, avers that he is holding him by virtue of certain commitments, which commitments are annexed to the return, and contain copies of the sentence and judgment showing' that at the October term, 1912, of the circuit court of the city of St. Louis, said petitioner pleaded guilty to two separate charges of robbery in the first degree, whereof he stood charged by two informations filed in said circuit court. Thereupon, and on the 8th day of November, 1912, petitioner was sentenced to imprisonment in the state penitentiary for the term of five years on each charge. These terms of imprisonment were, by the judgment and sentence in the last case adjudged against petitioner, made cumulative.

Petitioner, as by statute and the holdings of this court he was bound to do (Sec. 2443, R. S. 1909; State ex rel. v. Dobson, 135 Mo. 1), presented with his petition for the writ, certified copies of the sentences and judgments made and entered by the said St. Louis Circuit Court in the two several cases against him. A part of 'this judgment is pertinent to this opinion. The same, after reciting certain matters and things not now material here, says:.

“And it appearing to the court that said defendant is over the age of eighteen years, it is therefore considered by the court that said defendant George Lee, alias Frank Cunningham, alias Joe Boode, for his offense of robbery in the first de: gree as charged under information No. 183, June term, 1912, be imprisoned in the penitentiary of this State for the term of five years; that he pay the costs of this prosecution and stand committed until this sentence be complied with.”

Other facts so far as the same may be necessary to a full understanding of the case, will be found in the opinion.

"We are met in limine, by the provisions of a very plain statute (Sec. 2472, R. S. 1909), placing limits an(t restrictions upon the exercise of relief by the writ of habeas corpus, which provides:

“Sec. 2472. When remanded. — It shall be the duty of the court or magistrate forthwith to remand the party, if it shall appear that he is detained in custody, either: First, by virtue of process issued by any court or judge of the United States, in a cause where such court or judge has exclusive jurisdiction; or, second, by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; or, third, for any contempt, specially and plainly charged in the commitment, by some court, officer or body, having authority, to commit for a contempt so charged; or, fourth, that the time during which such party, may be legally detained has not expired. ’ ’

The only point urged upon us for the discharge of petitioner is the alleged fact that he was not eighteen years of age when he was first sentenced. For a proper understanding of this contention, a few of the facts may be stated chronologically :

October 4, 1912, petitioner, George Lee, was arraigned in the circuit court of the city of St. Louis on two informations, each charging robbery in the first degree. To both, he pleaded not guilty. October 22,1912, petitioner withdrew his plea of not guilty and pleaded guilty to each of said charges. He was on the same day sentenced by said court to imprisonment in the state penitentiary for the term of five years, on each of his said pleas. The penitentiary terms were made cumulative.

October 28, 1912, while petitioner was still in the custody of the jailer of the city of St. Louis, he filed' his motion in the said circuit court to set aside the sentences theretofore pronounced, on the ground that he was on the day he was sentenced under the age of eighteen years. As an exhibit, supplementing his said motion, petitioner annexed his own affidavit that he was born on November 6, 1894.

November 2, 1912, the circuit court sustained petitioner’s motion, and set aside the sentences in both cases.

November 8, 1912 (two days after petitioner bv# his own showing became eighteen years of age), the court sentenced him (or re-sentenced him, if that would be more expressive of the facts) to the penitentiary for cumulative terms of five years on each of said charges.

Whether the fact alleged, that petitioner was when first sentenced, under the age of eighteen years, be true or not, we do not know. From all that appears, the learned trial judge could not have known from any source of competent proof in this record whether petitioner was eighteen years of age or not. He set aside the first sentence, it is true. But whether he did so ex abundante cautela and afterwards took proof upon the motion and found that petitioner was over the age of eighteen years when he was first sentenced, we are unable to say from what is before us. From aught that appears we may presume that he did so, for we find the sentence reciting that “it appearing to the court that said defendant is over the age of eighteen years,” etc.

Be all this as it may, the statute recited (Sec. 2472, supra), and the construction of that statute by this court (Ex parte Kaufman, 73 Mo. 588) ^iave set bounds beyond which we cannot pass, were we inclined so to do under the facts here.

What was said by Norton, J., in Ex parte Kaufman, supra, with slight changes noted to fit the facts, may be said here: “We know of no law which would authorize us to try the question as to whether the fact asserted is-true'or false. The duty of trying this question (by taking evidence upon the motion) belonged to the court where the trial of petitioner was pending, and in which the judgment was rendered, and the petitioner should have given that court an opportunity of performing the duty by raising the question of non-age there (and by making proof of such non-age by legal and competent evidence), instead of having it investigated here.” Petitioner could, if he had raised the question at nisi prius, properly, have had the action of the court thereon reviewed here by appeal, as was done in State v. Townley, 147 Mo. 205.

Since petitioner did not see fit to do this, the statute, the holdings of this court, and the presumption, nothing appearing of record to the contrary, that the court acted upon proof in making its findings, all preclude our acting in the matter.

Therefore, the petitioner will be remanded to the custody of the warden and the writ will be dismissed.

Brown, P. J., and Walker, J., concur.


author: WOODSON, P. J.

text:
    LOUIS OBERT BREWING COMPANY, Appellant, v. S. A. KELLER.
    Division One,
    February 28, 1913.
    APPELLATE JURISDICTION: Attachment: Less Than $7500: Counterclaim for More Than $7500. Plaintiff sued in attachment, and defendant’s plea in abatement put in issue the allegations of the affidavit. The suit upon the merits was based upon an account stated, whose various items totaled $6175.11. Defendant’s answer to the merits denied the allegations of the petition, and set up a counterclaim for $8952.01. The attachment trial resulted in a verdict for defendant, and plaintiff appealed. The trial on the merits resulted in a verdict for plaintiff for ' $5656.41, and from that verdict there was no appeal by either party. Held, that the Supreme Court does not have jurisdiction of the appeal, and the cause is, therefore, transferred to the proper court of appeals.

      Appeal from Jasper Circuit Court. — -So». Henry L. Bright, Judge.
    Transferred to Springfield Court of Appeals.

      John B. Cole for appellant.

      M. B. Lively for respondent.
   WOODSON, P. J.

This is an attachment suit, which was instituted September 12, 1908, in the circuit court of Jasper county, by the plaintiff against the defendant.

The affidavit for the attachment, omitting formal parts, was as follows:

“This affiant states that he is the vice-president and treasurer of this plaintiff corporation and that he makes this affidavit on behalf of said plaintiff, and further states that the plaintiff in the. above entitled cause has just demands against the defendant herein, now due, and that the amount which this affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, is $6175.11, and that this affiant has good reason to believe and does believe:
“1. That the defendant conceals himself so that the ordinary process of law cannot be served upon him.
“2. That the defendant has ábsconded and absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him.
“3. That the defendant is about to remove his property and effects out of this State with the intent to defraud, hinder and delay his creditors.
“4. That the defendant has fraudulently conveyed and assigned his property and effects so as ‘to hinder and delay his creditors.
“5. That the defendant has fraudulently concealed, removed and disposed of his property and effects so as to hinder and delay his creditors.
“6. That the defendant is about fraudulently to convey and assign his property and effects so as to hinder and delay his creditors.
“7. That the defendant is about fraudulently to conceal, remove and dispose of his property and effects so as to hinder and delay his creditors.”

The defendant filed a plea in abatement putting in issue the allegations of the affidavit for the attachment.

The suit upon the merits was based on accounts stated, dated August 1, 1908, consisting of three counts, the two first, for goods sold and delivered ; the first was for $3181.56; the second for $2396.80; and the third was for $596.75 — total, $6175.11.

The defendant filed an answer to the merits, denying the allegations of the petition, and set up a counterclaim in the sum of $8952.01.

The reply was a general denial.

A trial was first had upon the attachment which resulted in a verdict for the defendant; and thereafter a trial was had upon the merits which resulted in a verdict for the plaintiff on the first count for the sum of $3181.56, and on the second in the sum of $2474.85 — total, $5656.41.

In due time the plaintiff filed its motion for a new trial of the issues in the attachment proceedings, which motion was by the court overruled, and the plaintiff duly appealed the cause to this court.

There was no appeal taken from the merits by either the plaintiff or defendant.

The plaintiff submitted its case upon briefs, but the defendant is not represented in this court.

It is apparent from the foregoing statement of the case, that the only question involved in this appeal is the correctness of the rulings made by the cir-cult court in the trial of the attachment suit which under the'facts disclosed by the record, this court has. no authority to review.

The cause is, therefore, transferred to the Springfield Court of Appeals, to be disposed of according to law.

All concur.


author: LAMM, J.

text:
    CITY OF ST. LOUIS v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY et al., Appellants.
    Division One,
    February 28, 1913.
    1. LIMITATIONS: Lands Dedicated to Public Use: Wharfs. Since August 1, 1866 (G. S. 1865, p. 746, sec. 7, chap. 191, which, is still preserved as live law in R. S. 1909, sec. 1886), title could not be acquired by adverse possession to lands given or granted to a public use, and said statute can nowhere be more beneficially applied than in preserving to cities grounds on the banks of navigable rivers for levees, wharfs and water fronts. But title to lands abutting on the river and belonging to the city as a part of its “commons” may have been lost by adverse possession for ten years prior to that date.
    2. ACCRETIONS: Not Included in Deed. It is the shore owner who is entitled to accretions forming to the shore. Where the city was the owner of lots bounded by the Mississippi River, and an official recorded plat made in 1847 showed a strip or ribbon of shore land between the east boundary line of the lots and the river, and the city in 1853-56 conveyed the lots by the exact quantity named in the plat and referring to the plat for the description, which did not include the strip or ribbon, and there is evidence that said strip was in existence before the plat was made and none that it sprang from accretions after those conveyances were made, the city did not by deed part with the said strip.
    3. LIMITATIONS: Tacking Present Possession to Former Adverse Possession. The present defendant in possession may tack his possession to the possession of his grantor who was in adverse possession prior to August 1, 1866, when it was allowable to acquire by adverse possession and limitations title to land devoted to a public use.

      4. -: Continuous Possession, but not Adverse: License. A railway company which was in continuous open possession of the city’s land for ten years prior to August 1, 1866, under a license from the city giving it the privilege of exclusively using said land for the purpose of a dock for forty years, did not have such possession as gave it title by limitations, for the possession was not adverse.
    5. -: Issue at Law: Burden. In ejectment, where plaintiff has the paper or record title, the burden is on defendant to show it has acquired that title by deeds or by adverse possession; and the issue being one at law, in either case, 'and there being evidence to sustain the verdict for plaintiff, or the finding of the court sitting as a jury, the Supreme Court is bound by it.
    6. EVIDENCE: Shifting Objection on Appeal. Appellant cannot make one objection to proffered evidence a.t the trial and, finding that untenable, have the evidence excluded on appeal on other grounds. Where defendant in ejectment at the trial objected to the offer of a concession agreement made with its remote grantor for the use of plaintiff’s property, that “it is not binding on us,” it cannot on appeal be heard to contend that the agreement was ultra vires, because of lack of power to execute it.
    7. -: Commons: Surrender to Private Persons: Ultra Vires. The strip of ground in suit was not a public street, but a part of the common granted to Carondelet by the United States, and by legislative grants of power that city had authority to sell or lease her commons. Therefore, cases holding that a city has no power to surrender possession of its de facto streets to private persons, do not apply.
    8. -: -:--:---: Estoppel: Adverse Possession: Set up by Beneficiary. Where defendant’s remote grantor got possession of the land in suit by a concession from the city of the privilege to him and his assigns to use it for dock and other like purposes for forty >years, and enjoyed'the fruits of the concession, it would be bad morals and bad law to hold that said grantor could acquire title by claiming to hold adversely to the city during the life of the concession. A party under a mere ultra vires contract may not get and retain benefits thereunder and then turn about and repudiate the contract
    'Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Affirmed.

      R. T. Railey and James F. Green for appellants.
    (1) In ejectment plaintiff must recover on the strength of his own title. St. Louis v. Blast Furnace Co.. 235 Mo. 1; Abies v. Webb, 186 Mo. 247; Mann v. Elliott, 99 Mo. 616; Mather v. Walsh, 107 Mo. 121; West v. Bretelle, 115 Mo. 653; Kingman v. Sievers, 143 Mo. 519; Large v. Fisher, 49 Mo. 307. (2) Defendant railway, as the riparian owner of blocks 66 and 77, was entitled to the accretions, if any, thereto. City v. Railway, 114 Mo. 21; St. Louis v. Blast Furnace Co., 235 Mo. 1. (3) The. contract between Carondelet and Ivory and also ordinance No. 610 were void, and transferred no title to the plaintiff. Wilkinson v. Dock Co., 102 Mo. 140; City v. Glasgow, 15 Mo. App. 122, 87 Mo. 678; Mathews v. Alexandria,. 68 Mo. 115; Schoppe v. St. Louis, 117 Mo. 136; Cole v. Lagrange, 113 U. S. 6; Glaessner v. Brewing Assn., 100 Mo. 515; Knapp, Stout & Co. v. Railroad, 126 Mo. 36; State ex rel. v. Murphy, 134 Mo. 564; City v. Carpenter, 13 Cal. 545. (4) The evidence also establishes title to the property in controversy in the defendant railway by adverse possession. Hendrickson v. Grable, 157 Mo. 42; School v. Goerges, 50 Mo. 194;. Dice v. Hamilton, 178 Mo. 89; Coleman v. Drane, 116 Mo. 389; Ins. Co. v. St. Louis, 98 Mo. 424.

      Lambert E. Walther and Henry W. Allen for respondent.
    (1) An action for the recovery of possession of land may be maintained against any person not having a better title thereto, in all cases where the plaintiff" claims possession thereof under or by virtue of a confirmation made under the laws of the United States. R. S. 1909, sec. 2383; Janis v. Gurno, 4 Mo. 458. (2) The Act of June 13, 1812 (2 U. S. Stat. at Large, 748), and the Supplementary Acts of May 26-, 1824 (4 U. S. Stat. at Large, 65), and of January 27, 1831 (U. S. Stat. at Large, 435), operated ex proprio vigore to divest the title of the land designated therein out of the United States and to vest it in the inhabitants of the village of Carondelet. Carondelet v. St. Lonis, 25 Mo. 459; Vassenr v. Benton, 1 Mo. 296; Janis v. Gnrno, 4 Mo. 458; Lawless v. Newman, 5 Mo. 236; Gnrno v. Janis, 6 Mo. 330; Ashby v. Cramer, 7 Mo. 98; Hammond v. Schools, 8 Mo. 65; Dent v. Bingham, 8 Mo. 579; Trotter v. Schools, 9 Mo. 69; Montgomery v. Landnsky, 9 Mo. 714; Page v. Scheibel, 11 Mo. 167; Harrison v. Page, 16 Mo. 182; Gamache v.' Piqnignot, 17 Mo. 310; Soulard v. Clark, 19 Mo. 582; Carondelet v. McPherson, 20 Mo. 201; Milbnrn v. Hortiz, 23 Mo. 532; Yasqnez v. Ewing, 24 Mo. 31; Funkhouser v. Langkoff, 26 Mo. 453; Primm v. Plarne, 27 Mo. 205; Milbnrn v. Hardy, 28 Mo. 514; Dent v. Sigerson, 29 Mo. 489; Carondelet v. St. Lonis, 29 Mo. 527;- Pine v. Pnblic Schools, 30 Mo. 166; Barry v. Blnmenthal, 32 Mo. 29; Langlois v. Crawford, 59 Mo. 456; Glasgow v. Baker, 85 Mo. 559, 128 U. S. 560; St. Lonis v. Railroad, 114 Mo. 13; Strother v. Lncas, 12 Peters, 412; LeBois v. Brammell, 4 How. 457; Gnitard v. Stoddard, 16 How. 494; Savignac v. Garrison, 59 U. S. 136; Glasgow v. Hortiz,'66 U. S. 595; Carondelet v. St. Lonis, 66 U. S. 179; Dent v. Emmeger, 81U. S. 308-; Ryan v. Carter, 93 U. S. 78. (3) Brown’s snrvey of the commons of Carondelet was authorized and approved. Dent v. Sigerson, 29 Mo. 489. (4). The city of St. Louis has succeeded to Carondelet’s title. Laws 1870, p. 458; Scheme and Charter of St. Louis. (5) A lessee cannot dispute his lessor’s title. Walker v. Harper, 33 Mo. 592; Stagg v. Tanning Co., 56 Mo. 317; Bank v. Clavin, 60 Mo. 559; Bierce v. Rollins, 60 Mo. App. 497.
   LAMM, J.

Ejectment. Issue joined on separate general denials. Judgment for plaintiff. Both defendants appeal.

Many years before Carondelet was merged in St. Louis by the Scheme and Charter, its “commons’! were surveyed and platted by authority,, there appearing therein two city lots or blocks, to-wit, 77 and 66— the latter lying north of and being coterminus with the former. Subsequently subdivided and replatted, they in part are now known as blocks 3244, 3243 and 3191. These several numeral designations are referred to in the evidence; but for convenience we will use the ancient numbers. Lying east of those blocks, bounded by them on the west and by the Mississippi river on the east, is a- strip 923 feet more or less from north to south, 156 feet more less in width at its north end, and 351 feet more or less in width at its south end, described by metes and bounds in the petition, including therein parts of certain streets known as Marceau and Hurck, which lies on the river bank and is the land in dispute.

St. Louis claims possession on the theory it is the successor of Carondelet in title, and that the part of the river bank in dispute is part of the old commons of Carondelet belonging to that town by a direct grant from the United States. Defendant Railway Company claims title as riparian owner and by adverse possession.

In determining the controversy we shall start out with certain assumptions, based either on undisputed proof, or on concessions made below at the trial, or on repeated adjudications by the Supreme Court of the United States (and by this court) establishing the significance, scope, and validity of certain ancient surveys relied on,, and interpreting certain early legislative grants made by the United States Government and enabling acts passed by the General Assembly of this State — all pertinent to the issues. The dates, history, scope and effect of those early acts have been so often set forth in our decisions, we need not take space to do so again. Those assumptions are:

(a) That by the Scheme and Charter the city of St. Louis succeeded to all rights and title of Carondelet, existing at that time (1876), to her commons.

(b) That originally, for all purposes of this case, blocks 66 and 77 were part and parcel of the commons of Carondelet, to which she had title in fee'from the General Government.

(e)That, nothing to the contrary appearing, those commons would include the strip in dispute, lying east of those two blocks and running to the west bank of the Mississippi river.

(d) That by a chain of title, whereby Carondelet first leased and then sold those blocks, defendant Railway Company by mesne conveyances holds record title to blocks 66 and 77.

(e) That defendant Wiggins Ferry Company is its present tenant.

(f) That at-the time of suit defendants were in possession of the tract in dispute, claiming title.

(g) That under legislative grants of power Carondelet could sell or lease her commons, at the several times she leased and afterwards sold blocks 66 and 77.

(h) That since August 1,1866 (G. S. 1865, p. 746, ■sec. 7, chap. 191,.reading: “Nothing contained in any .statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any .lands belonging to this State”), title could not be acquired, by adverse possession, to lands given or granted for a public use. That wise statute has been brought down as live law to this day (Vide, R. S. 1909, sec. 1886), and can nowhere be more beneficially applied than in preserving to cities, where the facts warrant, grounds on the banks ■of navigable rivers for levees, wharfs and water fronts.

Those assumptions leave open only two questions, to-wit: (1) Was title lost to the city by adverse possession of ten years prior to August 1, 1866? (2) Is the tract such an accretion to blocks 77 and 66 as inured to the owner of those blocks as a riparian right?

They are so related by overlapping and interdependence that they may be taken together, and;, so taken, both we think must be answered in the negative. This, because:

(1). The out boundaries of the commons of Carondelet were determined by the General Government by an official and approved survey made in 1834, known as “Brown’s Survey.” [Dent v. Sigerson, 29 Mo. 489.] That survey extended to the Mississippi river and took in the strip in dispute, if it then existed. There being no countervailing contentions made, one of our assumptions, “b,” was to that effect. These commons included several thousand acres and were not all platted at the same time. There was an early plat made by one Eiler of a portion of the commons lying a little north of blocks 66 and 77. Presently one Mackay in 1847 officially platted the territory lying south of that covered by the Eiler plat and extending on south to the River Des Peres, covering many blocks of irregular areas, among them 66 and 77. Both those plats or maps may be found in St. Louis v. Railroad, 114 Mo. 13 (q. v.), and neither will be reproduced here. Mackay’s, as did Eiler’s, showed a strip or ribbon of shore land between the east boundary line of the blocks in the plat and the river. In Eiler’s it is called “a tow or Water St.” In Mackay’s it is not named at all but seems to be a continuation of the designated strip in Eiler’s. [St Louis v. Railroad, supra, 114 Mo. l. c. 22.] In early instruments in this record this strip is spoken of as “the levee, bank, street or tow path.”

Some significance is attached by appellants’ counsel to the fact that on the Mackay plat there is a small break in the strip’s east boundary line where that boundary, the water line, reaches a point about opposite the southwest corner of block 66 in the line of its direction, south. As we grasp their suggestion it is that, whatever be the fact as to block 66, there is nothing on Mack-ay’s map to indicate that east of block 77 there was any land in existence at the time his survey and plat were made and recorded. But we cannot follow the lead of that suggestion; since a little further down on the plat we find the marked channel of the River Des Peres (which river - is the southern boundary of the Mackay plat) projecting its channel on the map eastwardly beyond the east line of the east tier of blocks, and evidently through a strip of ground lying east of the eastern outboundary of the platted territory until it stops, presumably at the Mississippi’s water edge. Moreover, the abrupt termination of the Mississippi’s water-line on the plat before reaching the River Des Peres, without any curve or continuation, is made in such way as lends no color to the insistence that the water-line and block-line unite as one in front of block 77. So, too, in 1854 there was a partition in kind of block 77 among its owners and the commissioners filed a plat of the land partitioned, as part of their report, showing a street east of the block and between it and the Mississippi river. ’

We lay little or no stress on the mere designations of this strip in these ancient instruments, as “a tow” or a “street” or a “levee;” for there is no evidence they were opened and used as a street or a wharf. Neither is there evidence that within the memory of any living man there was a tow path there- used by the public; but we do give stubborn importance to the fact that at the time (1847) that portion of the Carondelet commons, shown by the Mackay plat (as well as in 1854, at the time of the commissioners’ plat aforesaid), was platted, there was in existence on the earth’s surface a strip of ground belonging to the public, a part of the Carondelet commons, lying east of the east tier of blocks, fronting towards the river; for weighty matter hinges on that fact in dealing with the question whether the owners of blocks 66 and '77 were riparian owners, as we shall presently see.

There are cases holding that a tow path, kept up at the charge of the proprietor of the lots and following the changes of the river, does not stand in the way of lot owners being at the same time riparían proprietors. Bo, too, if the tow or passageway is a mere shifting easement. [St. Louis Public Schools v. Risley, 77 U. S. 91; St. Louis v. Blast Furnace Company, 235 Mo. l. c. 26-7.] But self-evidently those cases do not reach the facts we are dealing with here.

Carondelet, having theretofore leased block 66, parted with its fee title thereto in July, 1856— the conveyance describing block 66 as “lot 66 in Carondelet commons north of the River Des Peres, containing 14.97 arpents according to the recorded plat of subdivision made by Mackay to which for a full description reference is made.” That conveyance did not undertake to convey any then existing strip lying between block 66 and the river. In June, 1853, Carondelet párted with its fee title to block 77 (said block having theretofore been leased and containing 17 arpents and a fraction) under a similar description, omitting all reference to any land lying between the block and the river. We will not follow the mesne conveyances by which, finally in 1903, defendant Railway Company got its title; for they are not essentia] to the point in mind.

On such record, we rule as follows:

Absent all evidence indicating that the strip not conveyed sprang from accretions subsequent in time to those conveyances (as here), and present in the record persuasive evidence that the strip . . , . „ ,. , , , was m existence before the plat was made, limiting, bounding and numbering those blocks, and the further fact that Carondelet conveyed by reference to that plat, we cannot hold that defendant Railway Company has riparian rights as a shore owner. Contra, we must hold that Carondelet did not, by those conveyances, part with its title to that part of its commons included in the strip along its river bank. Nor did it part with its fee title at any' time.

The foregoing ruling is grounded on the familiar doctrine that it is the shore owner who is entitled to accretions forming to the shore.

There is a late and well considered case, cited and relied on by appellants, St. Louis v. Blast Furnace Co., 235 Mo. 1, which we may as well speak of at this point. The. facts held in judgment there differ essentially from those in judgment here. There defendant held title under a Spanish grant in 1799, running to the river and confirmed by commissioners under early Federal enabling acts. It was an inhabited village lot, not “commons,” and Carondelet never had title. Under such circumstances it was held that the accretions inured to the lot owner. It would serve no useful end to consider anew the distinctions between, and devolution of the titles of, “out lots,” “com-field lots,” “village lots” and “commons,” as known to early French villages and dealt with in Federal laws having for their purpose to carry out the Louisiana Purchase treaty of 1803. The books are full of exposition in that behalf. Take as samples, the Blast Furnace case, supra; State ex inf. v. Woods, 233 Mo. l. c. 373 et seq., and cases cited; Carondelet v. St. Louis, 25 Mo. 448; Vasquez v. Ewing, 24 Mo. 31, and many cases collated by counsel in briefs.

(2). "With the question of riparian rights held adversely to appellants, we confront that of adverse possession. To maintain this contention of an open, adverse and continuous possession under a claim of right for ten years prior to AuS'ust A 1866, they undertake, as they must do (except in a particular considered presently), to tack their possession onto that of the Carondelet Marine Railway and Dock Company. The business of that corporation speaks through its title. It was incorporated by an act of the General Assembly, .approved February 28, 1855, to build and own docks and marine railways, with a capital stock of $50,000 — $20,000 to be paid in after the election of its board of directors. On December 12 of that year there was a supplemental and amendatory act passed and approved whereby $10,000 (instead of $20,000) should be paid in after the election of directors, and the time for opening books for subscription was extended for tw© years from the passage of the amendatory act. It does not appear when its subscription books were opened or closed, or it became a going concern. In 1862 the Dock Company purchased a part of block 66 from its then owner and in that deed the eastern boundary is given as the Mississippi river.

(Nota bene-. The abstract of title is very long and is- copied into the record in full. Some of the conveyances do not relate to the strip in question and it is difficult to ascertain how title to the north half of block 66 is dereigned, nor is it essential we should do so.)

Turning to block 77 the Dock Company got title in November, 1856. The deeds referred specifically to the commissioners’ plat in partition, heretofore mentioned, but they also assumed to convey all the “ interest” of the several grantors to the land lying east of the east line of the block between that and the river. Before that, m May, 1856, Carondelet , , . , . , , agreed to convey certain real estate to one Ivory, to-wit, Mocks 72, 29 and 17 of its commons, none of them on the Mississippi river. In consideration thereof Ivory agreed to estaMish and pnt in operation on the latter river a dock for the repair of steam boats of a given capacity within twelve months and a marine railroad to be begun within six months. Among other provisions is the following:

“And it is further agreed,,that the said Ivory, or his assigns, owners of said docks or railway, shall have the privilege of using for the purposes of said dock or railway the lévee, bank, street or towpath, lying opposite the said dock, or on which said railway may be constructed, to his or their own exclusive advantage and enjoyment for the term of forty years from and after this agreement, subject to the conditions hereinafter mentioned, the said city for the time being abandoning all right of way or other use or uses thereof. ’ ’

There are other provisions not essential to any question up for determination. That agreement was duly acknowledged and recorded. In April, 1859, for' a consideration of one dollar (and other unexpressed considerations) there was executed and duly placed of record an assignment by Ivory of all his right, title and interest acquired through the foregoing instrument with all its privileges and immunities to the Carondelet Marine and Dock Company. In 1870 the following ordinance was passed by Carondelet:

“An Ordinance extending to the Marine Railway and Dock Company certain exemptions and privileges heretofore granted.
“Whereas, The Carondelet and Marine Dock Company have strictly and faithfully complied with all and singular the conditions, terms and stipulations contained in a certain contract entered into between said city and John C. Ivory, in behalf of said company, dated the 16th day of June, 1856, in pursuance of a resolution of the city council passed on the 31st day of May, 1856; and
“Whereas, said Marine Railway was the first public improvement in this city, has proved to be of incalculable benefit to the community, attracting a large population of mechanics and laborers, and distributing many thousands of dollars yearly among the working classes of this city — all.of which deserves at our hands a fitting acknowledgment and a proportionate encouragement.
“Therefore, Be it ordained hy the city council of the city of Carondelet, as follows:
“Section 1. The said Marine Railway and Dock Company are hereby exempt from all city taxation, general as well as special, on all improvements, buildings and machinery now used and hereafter to be erected and established by them on the real estate now owned and occupied by them, lying south of Marcean street, extending southwardly and parallel with the Iron Mountain Railroad tract to the intersection of the northwest corner of the property now owned and used and belonging to the Kingsland Iron Company, thence westwardly to the Mississippi river.
“Section 2. Said exemptions shall commence from and after the passage of this ordinance, and continue for and during the period of twenty-five years thereafter.
“Section 3. Said company shall further continue to have the exclusive use for said term of twenty-five years of that part, of Mareeau street which lies east of the Iron Mountain Railroad tract, and extends eastwardly to the Mississippi river at low-water mark.
‘ ‘ Section 4. The mayor is authorized and directed to enter into a written agreement with said company, setting forth in substance the provisions of this ordinance, and containing a condition that the privileges and exemptions herein granted shall end and determine whenever, in the opinion of the city council of said city or of its municipal successor, said Marine Railway and Dock Company ceases to be in successful and continued operation, and shall contain such further conditions and terms as he may deem proper and necessary to carry out the intent and object of this ordinance.
“Section 5. This ordinance shall take effect and be in force from and after the filing with the City Register of a duplicate of said contract.
“Approved, April 4, 1870.”

The ordinance was not objected to below, but the admission of the agreement' between Carondelet and Ivory was objected to by appellants, in these words: “I object to that for the reason that it is not binding on us.”

That possession was taken of the strip in dispute for Dock and Marine Railway purposes at about the time of the Ivory agreement is abundantly shown. That such possession at least in the very early sixties and late fifties and thence on was ex-elusive, also appears. That it was continuous must be admitted. But we look in vain for satisfactory evidence that it was adverse for ten years prior to August 1,1866. The burden, on that score, was on appellants. Let it be conceded there is evidence of an intent or preparation to claim an adverse holding later on, but that does not help appellants. The ordinance of 1870, introduced in evidence without objections, lends countenance to the theory that the strip was occupied and held under the Ivory concession and not adversely to Carondelet. There is no claim, pretense or showing that any plant or system of dockage or marine ways was built in Carondelet except one. The nominal consideration in the Ivory assignment lends color to the idea that he probably took and held for the benefit of the Dock Company. That is not an infrequent expedient in the preliminary stages of the development of a corporation. So, the fact that the Dock Company had a leeway of two years under its amendatory incorporating act, after December 12, 1855, to open its subscription books indicates that there was an expectation of a considerable time to elapse before it would be ready and fully equipped to build its plant and go into active operation.

We now recur to a phase, heretofore alluded to on the question of when adverse possession began, viz.: It is argued for appellants that in 1856 a predecessor of the St. Louis, Iron Mountain and Southern Railway Company, to-wifc, the St. Louis and Iron Mountain Railroad Company, was in possession under claim of title both of block 66 and of the intervening space between that and the river; and that such possession is a controlling factor. We ought not to take judicial notice that the named company was the predecessor of defendant company, the record being dark one way or the other on the fact; but if the fact were admitted there is no evidence of adverse possession of the very strip in dispute in the “Railroad Company.” In July, 1856, that company was ‘grantee in a deed to part of block 66, described as running to the river. The conveyance was made in consideration of certain benefits, to-wit, the location of freight and passenger depots and a machine and repair shops — the depot building to be erected in one year. On March 11, 1859, in consideration of one dollar that “railroad company” re-deeded the property to the persons from whom it got title, reserving only to itself a right of way through the premises. Presumably the consideration ■ of the grant had failed, as the record is silent on the location of machine shops, depot buildings, etc. On such record, we will not assume possession adverse to the city of the strip in dispute, since plats in evidence show the railroad tracts are in fact located west of the strip and in blocks 66 and 77 proper.

Finally, it must be kept steadily in mind that tbe suit is at law, not- in equity. In such case tbe stiff rule is that where there is evidence to sustain the verdict of the jury or the finding of a .... . \ court sitting m that capacity, as here, an appellate court is bound by it. [Donaldson Bond & Stock Company v. Houck, 213 Mo. l. c. 426-7.]

On the whole record (reserving for the present the objection, to the introduction of the Ivory agreement) we hold appellants did not successfully carry the burden of showing an open, unbroken, adverse possession of the strip in litigation for ten year prior to August 1, 1866, and the point is ruled against them.

(3). Adverse possession being disposed of in paragraph two on the assumed theory there was no reversible error in admitting evidence, we come, in conclusion, to that pretermitted factor. When the Ivory concession agreement was offered respondent, in rebuttal to the showing made by appellants on their defense of adverse possession, it was challenged thus: “By Mr. Herbel (interrupting): I object to that for the reason that it is not binding on us.” The objection was overruled and counsel marked the ruling with an exception and now assign error thereon.

The point is without substance, because:

(a) The point made below is not made above. Below, the objection was: “It is not binding on us.” Above, the objection assumes a new countenance, viz., that the agreement was ultra vires, hence bad from lack of power to execute it — essentially another matter. The first objection impliedly assumes it was binding on the parties to it, but not on “us.” The last logically faces the other way and is an assault on the instrument itself because ultra vires. The first would be sustained by showing that appellants were not parties to it, or in privity with those that are; the last lays an ax at the root of the instrument. The first objection is no longer tenable, because it was subsequently shown that appellants held under the Dock Company and that the Dock Company 'took an assignment of the Ivory concession and stood in Ivory’s shoes. It is old. and good doctrine that on appeal a cause must be heard on the trial theory. So it has been ruled that an objection below must not be altered to another above, thereby shifting positions. [Bragg v. Railroad, 192 Mo. l. c. 342, and cases cited.] Any other course would open wide the door to reverse judgments on exceptions not ruled below at all.

(b) But waiving that view for the nonce and attending to the merits, the point is still without substance. ¥e are referred by learned counsel for appellants to an aggregation of cases holding that a city has no power to vacate or surrender possession of its de facto streets and wharfs to private persons for private uses. That such contracts are ultra vires. That they cannot be enforced if unexecuted. That such city may repudi-' ate them, or be compelled at the suit of private persons having a justiciable interest to resume its duties as trustee for the public, etc. We have considered those cases one by one, and find the facts are dissimilar in kind from the facts of this record. We are not satisfied in the first place that the strip in dispute was a public street. Counsel we think proceed on a wrong premise in that regard. Some paper streets are named in the concession, but they were short cross streets never opened or improved and at most cover little of the land. Now, Carondelet had legislative power granted to it to lease its commons as contradistinguished from its streets.

Moreover, having got possession under the Ivory concession, as we have been constrained to hold, and having enjoyed the fruits of that concession, would it not be bad morals and bad law to hold that parties holding under that concession could acquire title from the true owner by claiming to hold adversely during the life of the concession? If we were able to say that the possession taken was not under the concession, but the assertion of an independent right (as appears in some cases cited, for instance: Atlantic & Pacific Railroad Co. v. St. Louis, 66 Mo. 228), a different case would be here for disposition. In that event, if the concession were held to be ultra vires, it would cut no figure one way or the other.

To illustrate further with an a-b-c case: Suppose A let to B for a term of twelve years a tenement, expressed on the face of the lease to be contra tonas mores, to-wit, for bawdry. Given that B took possession under the lease and held for twelve years, then, because the lease was void as malum in se could B retain the tenement as his own under the Statute of Limitations? How much less would that proposition be sound where the lease was merely bad for want of authority to execute it?

The doctrine that a party under a mere ultra vires contract may not get and retain benefits thereunder and turn about and repudiate the contract is well grounded in principle. [St Louis v. Davidson, 102 Mo. 149; Mayor v. Sonneborn, 113 N. Y. 423; Bank v. Trust Co., 187 Mo. 494.]

The proposition advanced is akin to that repudiated by the courts, viz., that a party may take the benefits of an unconstitutional law and afterwards plead its unconstitutionality. [State ex rel. Kinsey v. Messerly, 198 Mo. 351; Daniels v. Tearney, 102 U. S. l. c. 421; and cases cited.]

The damages below and monthly rents were nomiT nal. The action was brought to assert a right in the city to a part of its water front. The instructions given showed the trial court rightly conceived the law. The judgment was right. Let it be affirmed. It is so ordered.

All concur.