author: BOND, J.

text:
    KANSAS CITY v. MASTIN REALTY & MINING COMPANY et al., Appellants.
    In Banc,
    December 24, 1913.
    1. WIDENING STREETS: Damages and Benefits: Wrong Verdict: Induced by Appellant’s Testimony. Although the jury made unequal and disproportionate assessments of the damages and benefits to the property in the proceeding to widen the street, and in estimating benefits charged against appellant an excessive sum, yet if the instructions were correct, and their seeming disregard of them was induced by the statement to them at the trial of appellant’s accredited agent to the effect that appellant only desired that the benefits should not exceed the damages, and the benefits assessed by the jury were less than the damages, the verdict will not be set aside.
    2. -: -: -: Induced by Testimony of Appellant’s Accredited Agent: Scope of Power: Mistake. Where appellant’s accredited agent appeared before the jury and stated that appellant only desired that the benefits assessed against his property abutting on the street to be widened should not exceed the damages, such statement was within the scope of his agency, and if he misconceived his instructions or exceeded the power delegated, the appellant is bound thereby, as much so as if he had been present and made the mistake himself, since the statement was made without any notice to the jury of any limitation or restriction upon the "agent’s apparent authority.
    Appeal from Jackson Circuit Court. — Eon. W. 0. Thomas, Judge.
    Affirmed. '

      Boyle do Biowell and Joseph 8. Brooks for appellant.
    (1) Under tlie evidence and instructions in the case, the appellant was entitled .to have the jury assess benefits against its property not taken as compensation for the property taken and damaged, an amount bearing the same ratio to the whole amount of benefits, assessed against private property, as the benefits to each lot or parcel bear to the whole benefits to all the private property assessed. (2) The jury could not assess a greater benefit to the property of appellant than it actually received. The verdict of the jury was against the law and the instructions of the court, in that it assessed greater benefits to- the prop7 erty of appellant than the benefits to each lot or parcel bore to the whole benefits to the property assessed. (3) The verdict must be responsive to the issues. The finding of the jury must be based on tbe instructions, and a verdict disregards the rule of assessment of benefits as directed by the court in the instructions and is based upon a different rule, is erroneous and should be set aside. Payne v. Railroad, 129 Mo. 121; Roden v. Helm, 192 Mo. 91; Schneider v. Patton, 175 Mo. 723; Ross v. Ross, 81 Mo. 81; Irvin v. Chiles, 28 Mo. 576; Winldman v. Maddox, 119 Mo-. App. 658; Dailey v. Columbia, 122 Mo. App. 21. (1) The mere statement of a witness that a claimant was willing to have the. damages for taking its property equalized with the benefits accruing to other property not taken could not authorize the jury either to diminish its damages or increase its benefits. (5) The rule that verdicts of juries and judgments of courts cannot go beyond the issues, of the trial, applies in condemnation proceedings equally with other cases. Ross v. Gates, 183 Mo. 338; Buchanan v. Kansas City, 208 Mo. 671; St. Louis v. Brinekworth, 201 Mo. 296. (6) The jury could not consider the statement of Tempofsky as ceding away any of the rights of the appellant. The jury could net on such evidence (if we may call if evidence) increase the amount of benefits sustained by appellant’s prop-, erty and correspondingly reduce .the benefits to the property of others in the benefit district. Payne v. Railroad, 129 Mo. 105; Roden v. Helm, 192 Mo. 91.

      A. F. Evans and Francis M. Hayward for respondent.
    (1) It is claimed that the witness Tempofsky did not testify as he was instructed to by Mr. Mastin. That is the substance of the complaint. But it is no ground for a new trial, that a witness failed to testify as he was instructed. But there is nothing in the record to show that Tempofsky made any mistake. The blank affidavits filed five days after the motion for new trial certainly have no probative force, and besides, it was the province of the lower court to pass on such affidavits, if they had been affidavits. Trial court has large discretion even on passing on affidavits in aid of new trial. Esler v. Railroad, 109 Mo. App. 580. (2) There is no claim in the motion for new trial that Tempofsky made a mistake or was not authorized to give the testimony he did at the trial. The motion for new trial is based wholly on" the idea that the verdict is against the law and the evidence, stated in various ways. The idea that any witness made a mistake appears for’ the first time in the unsworn affidavits of Mastin and Tempofsky filed November 30,1912, whereas the motion for new trial was filed November 25,1912, and the verdict was filed November 21, 1912. So that these unsworn affidavits cannot be a part of the motion for new trial, as they were not filed until nine days after the verdict was rendered. The point not being saved by the motion for new trial is not before this court. Errors committed at the trial not called to the attention of the court in the motion for new trial, cannot be considered on appeal. State v. Kimmons, 124 Mo. App. 498; State v. Brannon, 206 Mo. 639; Grisham v. Ins. Co., 130’ Mo. App. 63. (3) Appellant got exactly what its own agent and representative said it wanted, and it surely cannot complain. Volentia nonjit injuria. Robinson v. Musser, 78. Mo. 163. If during the trial appellant invites a certain judgment, he cannot complain thereof in the appellate court. Baily v. McWilliams, 111 Mo. App. 35'. On appeal appellant cannot complain of an error which he himself produced or aided to produce. Hogan v. Hinchey, 195' Mo. 533; Schrodt v. St. Joseph, 109' Mo. App. 631; Estes v. Nell, 163 Mo. 395; Gayle v. Car & Foundry Co., 177 Mo. 427; Walland v. Railroad, 144 Mo. Appi 211.
    STATEMENT.
    This is a condemnation proceeding under an ordinance of Kansas City for the widening of Nineteenth street between specified limits. Proper steps were taken in the circuit court as prescribed by the charter of said city and a jury called to assess the respective benefits and damages of the owners of the property lying within the benefit district, who returned their verdict on the 25th of October, 1912.
    On the trial the evidence showed that fifteen feet of the south side of Nineteenth street (running east and west) were taken for the distance of three blocks in order to widen it according to the ordinance, that appellant owned the entire frontage on both sides of one of the three blocks to be widened, being the distance between McGee street and Grand avenue. The amount of damage assessed the appellant was $38,000, and it was charged as benefits in the sum of $37,617.69. The only part taken by appellant during the trial was the following testimony given by his employee Isaac Tempofsky.
    “Q. What property is it you represent? A. All of Block 39, Mastín’s Subdivision. All we have to say in the case is, we think the benefits should not exceed the damages. That is about all there is to say, as we own on both sides of the street.

      “Cross-examination:
    ‘ ‘ Q. That is the attitude of the owners of the Mas-tin property, that if it is' an offset, the damages and benefits be equal, they are satisfied? A. Yes, sir.
    “Q. Do the owners of your property think this is a general benefit to the neighborhood and to the property? A. Yes, sir.”
    After the verdict appellant duly moved for a new trial and was allowed ten days thereafter to file affidavits in support. Within said time two unsworn statements in the form of affidavits were filed by appellant, the one signed by its president, the other signed by its agent Isaac Tempofsky. In substance Mastin stated: that his company owned certain property on Nineteenth street within the locality where it was to be widened; that he-favored the widening of the street and undertook to express Ms views to Isaac Tempofsky, an employee of Ms company; that being out of the city he did not appear as a witness himself; that the testimony given by Tempofsky is not in harmony “with what affiant purposed touching the widening of said street,” adding, “Mr. Tempofsky’s testimony was that I woiild be satisfied as long as the benefits did not exceed the damages, or vice versa, but he did not intend to mean my benefits or my damages but of the entire property taken, and referring also to the entire benefits and damages.” He further complained that the verdict of the jury would cause him to lose $3500 after having donated the property for the widening of the street, and that said amount of $3500 should have been allowed him as damages for reconstruction. The statement of Mr. Tempofsky is, to-wit:
    In the Circuit Court of Jackson County, Missouri, at Kansas City. • N. 68513.
    In the matter of the opening and widening of Nineteenth street from the east line of Main street to the west line of McGee street.
    County of Jackson.
    State of Missouri,
    Isaac Tempofsky, being first duly sworn, says:
    I am the agent of the Mastin Realty and Mining Company, and testified before the jury having under consideration the widening of Nineteenth street, Kansas City, Missouri. I have read the affidavit of T. H. Mastin, filed herein, and am familiar with the contents of the same. That it was my purpose in testifying before the jury to express the thought as contained in Mr. Mastin’s affidavit, and if the jury got a different impression I certainly misstated myself, or the jury misconstrued my testimony. Mr. Mastin had instructed me to do all that I ' could to assist in the enterprise of widening said street, but he certainly did not authorize me to give the company’s property away with such liberality as has been done in the jury’s-verdict. Isaac Tempofsky.
    Subscribed and sworn to before me this 29th day of November, • 1912. --,
    Notary Public, Jackson Co'., Mo.

      The motion for- new trial was overruled and this appeal is only prosecuted by Mastín Realty and Mining Company. Other evidence bearing on the errors complained of by appellant will be noticed as much as is needful in ruling upon the same.
   OPINION.

I.

BOND, J.

(After stating the facts as above). — The errors assigned are, that the jury made unequal and disproportionate assessments of the property of appellant. The evidence shows that in estimating benefits the jury charged a sum against plaintiff in excess of what should have been apportioned to it considering the extent of the entire benefit district and considering also the proportions of the total benefits which should have been borne by it and by other property owners respectively; this was particularly the case as to the relative amount of assessments of benefits found against appellant and one Tilney. No apparent reason existed for the discrimination between these two parties, since the jury awarded one of them damages for reducing his lot to thirty-five feet, and assessed against -the other a benefit for reducing his lot seventeen feet; the two lots being on opposite sides of the street. In view of this action of the jury we would reverse and remand this ease except for the basis afforded to their findings by the testimony of Tempofsky, who was sent to testify before them on behalf of appellant. But considering the testimony and the statement explanatory thereof made by the .president of the appellant corporation and submitted on its motion for new trial, we do not feel at liberty to award appellant the redress it would have been otherwise entitled to on this appeal. There was no misdirection as to the rule governing the assessment of benefits and damages to the various property owners expressed in the instructions of the court, which in substance embraced the provisions of the charter of Kansas City on that subject, and the general law applicable to- such matters. [Webster v. K. C. & S. Ry. Co’., 116 Mo. 118.]

The seeming disregard of that rule by the verdict of the jury was induced by the statement on the witness stand of appellant’s accredited agent, that appellant only desired an equation of benefits and damages in the assessments which the jury might make for this desirable street widening. Appellant got that, for the damages given it slightly exceeded its burdens in the way of damages.

11.

The only question which can arise as to the preclusiveness on this appeal of the testimony given for appellant on the trial is whether Tempofsky was authorized by it to appear as its representa^ve • That he was so employed is clear from the statement made in support of its motion for new trial; and if it be true the witness exceeded his instructions or misconceived them, still he was acting within the apparent scope of his agency when he appeared and testified, and hence his principal is just as much bound by that testimony as if it had conformed in all respects to the directions given to the agent. Mr. Mastín, the president of appellant, saw fit to entrust the communication of his “attitude to the widening of Nineteenth street” to its employee, and that communication having been made without notice of any limitations to the court and jury, the verdict rendered in accordance with the testimony thus adduced is just as free from legal objections as if it had been based on the same testimony falling from the lips of the president of the corporation if he had chosen to appear as the witness, which he says he intended to do, but tliat on account of absence he delegated that task to his agent.

The law is the guardian of the rights and property of all persons, but it does not undertake to stand sponsor for their failure to exercise ordinary care and vigilance in the management of their own business. Vigilantibus et non dormientibus jura subveniunt. If any loss has happened to appellant in this matter it resulted simply from voluntary inattention to his private business. [Gayle v. Mo. Car & Foundry Co., 177 Mo. l. c. 455; Estes v. Nell, 163 Mo. l. c. 395.]

We discover no reversible error in the judgment, it is affirmed.

Lamm, G. J., Graves, Brown, Walker, and Faris, JJ., concur; Woodson, J., dissents.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    Ex Parte WILLIAM R. NELSON.
    In Banc,
    December 24, 1913.
    1. COSTS. Costs are purely creatures of statute, which must be strictly construed.
    2. -: In Habeas Corpus. Where petitioner is discharged the costs of the habeas corpus proceeding cannot be taxed against him, nor can they be taxed against the sheriff who held him under a writ of commitment, regular on its face, which had been issued by a court having jurisdiction of the subject-matter; and there being no statutory authority to tax the costs against either, no order in regard thereto can be made.
    On Motion To Set Aside Order Taxing Costs Against The Petitioner.
    Order set aside.

      Frank P. Walsh, F. R. Morrison and James P. Aylward for petitioner.

      Ed E. Yates, O. H. Dean and Willard P. Hall, amicicuriae.

   WALKER, J.

The original proceeding’ herein was based on an application for a writ of habeas corpus which was granted by this court and the costs taxed against the petitioner. Subsequently a motion was filed by the petitioner to set aside the order taxing the 'costs against him. This motion is the matter now under consideration.

At the common law no costs were recoverable. [City of St. Louis v. Meintz, 107 Mo. 611.] Costs in Missouri being, therefore, purely creatures of the statute, enactments in relation thereto must be strictly construed. [State ex rel. v. Seibert, 130 Mo. l. c. 217; St. Louis & Gulf Railway Co. v. Cape Girardeau, etc. Railway Co., 126 Mo. App. 272; Lucas v. Brown, 127 Mo. App. 645.]

We find upon an examination of our statute in regard to habeas corpus no provision therein in regard to the taxation of costs. Reference must be had, therefore, to the general statute which provides (Sec. 2263, R. S. 1909) that “in all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.” In the application of this general rule to the case at bar, we are met with a condition which precludes the assessment of the costs against “the other party” or the officer who had the petitioner in custody at the time of the issuance of - the writ. The officer, who was the sheriff of Jackson county, held petitioner under a writ regular on its face which had been issued by a court having jurisdiction of the subject-matter. This was ample to protect the sheriff and there is, therefore, no authority for the taxation of the costs against him; nor is there authority for the taxation of same against the petitioner. In addition to the absence of a statute, there is a manifest injustice in burdening the successful party to a proceeding with the costs 'of same, especially in a habeas corpu,s suit where the purpose of the action is to secure the liberty of the petitioner.

We need not waste words on the contention made by “friends of the court” in their suggestions filed herein in support of their motion originally made asking the taxation of the costs against the petitioner, first, as stated by movents, that the sheriff who was the “other party” cannot be burdened with the costs, and, second, that costs must be adjudged against some party. That the costs cannot be taxed against the sheriff is evident; but that they must be taxed 'against some party, follows only if there is a statute authorizing such action, .and there is none.

There being a casus omissus in this State in regard to the taxation of costs in habeas corpus proceedings, this court cannot, except by the usurpation of power, tax the costs herein against the petitioner or make any order in regard thereto. In the absence of such power we cannot and should not concern ourselves with payments of costs heretofore made by the parties to this proceeding or recognize any agreements entered into by them in regard to same.

In view of all of the foregoing the order heretofore made, taxing the costs against the petitioner, should be set aside, and it is so ordered.

All concur, except Bond, J., who dissents.


author: BROWN, J. WALKER, J

text:
    THE STATE v. ANDREW WEINHARDT, Appellant.
    In Banc,
    December 24, 1913.
    ROBBERY: Instruction for Petit Larceny: No Violence or Threats: Fear. Where defendant, indicted for robbery, entered a saloon and took $20 from the cash register and carried it away, the court commits -reversible error if it fails to instruct the jury on the crime cif petit larceny, if there is any substantial evidence, even though it be only the improbable testimony of defendant, that in taking the money he did not assault the keeper’s wife at the time in charge of the register and of the saloon, and did not place her in fear of immediate danger to her person. Even though she may have been scared, that fact alone did not convert defendant’s acts in taking the money into the crime of robbery, unless he intentionally did or said something which placed her in fear of immediate injury to her person.

      3el&, by WALKER, X, dissenting, (1) that, measuring the grade of the offense by defendant’s testimony, alone he was not entitled to an instruction for petit larceny, for he testified that he told the saloon keeper’s wife, “I 'won’t hurt you,” to -which she replied, “Don’t hurt me, take all you want,” and if that testimony is true he was not guilty of either robbery or larceny in any degree; and (2) the rule being that neither courts nor juries are required to yield credence to a witness who, to save himself from justly merited punishment, makes unreasonable statements inconsistent with all the, other testimony and with the physical facts and then boldly invokes an instruction based upon such simulated evidence, the court should not have given an instruction for a lesser grade of the offense based upon defendant’s testimony alone that he did not touch or threaten the prosecutrix, since all the other testimony is to the effect that the defendant and his cousin went to the saloon, in the neighborhood in which he had lived ‘ from boyhood, and while the cousin remained on the outside on the lookout, defendant entered, and finding the keeper’s wife alone and in charge, caught her by the throat and told her to shut up, that if she did not he would kill her, and then dragged her about half the length of the bar- to where the cash register was located, and while holding her with One hand opened the register with the other and took out the money, during which time she was unable to speak, but recovering her voice .said, “You can have that money, but leave me alone; don’t kill me.”
    Appeal from St. Louis City Circuit Court. — How. Leo 8. Rassieur, Judge.
    Reversed and remanded.

      Zachritz & Zachritz for appellant.
    (1) Robbery in tbe first, degree, under our statutes and decisions, involves an intentional putting in fear, or the use of violence by the defendant. State v. Sommers, 12 Mo. App. 375; State v. Smith, 119 Mo. 439; State v. Jenkins, 36 Mo. 372; State v. Howerton, 59 Mo. 91. (2) Where there is evidence of any witness tending to establish the commission of an offense included in the one embraced in the information, but of a lesser degree, it is the duty of the court to instruct the jury upon such lower grade of offense. Secs. 4904, 5231, R. S. 1909; State v. Doyle, 107 Mo. 42; State v. Harris, 209 Mo. 440; State v. Grant, 144 Mo. 67; State v. Williams, 186 Mo. 128; State v. Richardson, 194 Mo. 326; State v. Hoag, 232 Mo. 316; State v. Austin, 183 Mo. 479; State v. Scott, 172 Mo. 545. (3) It is the duty of the court, whether requested or not, to instruct the jury in writing upon all questions of law, arising in the ease, which are necessary for their information in giving their verdict, and a failure so to do is good cause for setting aside the verdict, in the event of a conviction, and granting a new trial. Secs. 5231, 5284, R. S. 1909, and cases cited above.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Before the jury could convict the defendants, or either of them, they were required by the court in instruction numbered 2 to find that they, or either of them, had: (a) Assaulted Mrs. Koebbe, (b) and by violence to her person, (c) and by putting her in fear, (d) unlawfully and fraudulently, (e) in her presence, (f) and against her will, (g) did take $20l, (h) to convert to their own use, (i) and said money belonged to Mrs. Koebbe, and if the jury did not so find the facts to be they should acquit. This instruction was proper. State v. Cantlin, 118 Mo. 108; State v. McLain, 159 Mo. 340; State v. James, 216 Mo. 394. (2) The court was specifically requested to instruct on petit larceny, and on refusal to do so, defendant saved his exception. Defendant’s testimony made a ease of petit larceny against himself. The jury were told by the court, in instruction numbered 2, that unless they believed from the evidence that the money taken from the possession of Mrs. Koebbe was taken in her presence and an assault was made on her, and by violence to her person, or by putting her in fear of some immediate injury to her person, they should acquit the defendant. In other words, the jury were told by the court in this instruction that if the money taken by defendant from the cash register in the Koebbe saloon was taken in the manner described by defendant in his testimony, then they should acquit him, although his testimony was a confession of the crime of petit larceny. The jury were told that if defendant was only guilty of petit larceny, he should be acquitted. We admit that the crime ofpetit larceny is included in a charge of robbery, and we also assert that had defendant been acquitted of the charge of robbery, he-could not afterwards be convicted of petit larceny. State v. Andersion, 186 Mo. 25. Defendant’s rights were not jeopardized by the refusal of the court to instruct the jury on petit larceny. There are a few decisions of this court that intimate as much, but we have been unable to find a case in this State squarely holding that it was error to refuse such an instruction on a charge of robbery. These cases are: State v. Coffee, 158 Mo. 568; State v. Whalen, 148 Mo. 286; State v. Brown, 104 Mo. 365. But in each of these cases the court said that the evidence of the defendants and their witnesses disclosed innocence on their part, if true, and it was therefore not error to- refuse to instruct on petit larceny. In the case at bar, the jury in effect were told by the court, in instruction numbered 2, that if they believed the testimony of the defendant, that is, that he took the-money out of the cash register in Koebbe’s saloon in the presence of Mrs. Koebbe, without force or violence to the person of Mrs. Koebbe and without putting her in fear of immediate, injury to her person, and without threatening her in any way, they should acquit him. The giving of instruction' numbered 2 was most clearly and decidedly in defendant’s favor, in view of his own testimony. If the jury believed his testimony, they were told to acquit him, and if they did not believe his testimony, they were to find him guilty of robbery in the first degree, and the jury having found him guilty of robbery in the first degree is conclusive that they disbelieved his testimony and believed the testimony of Mrs. Koebbe. Clearly, under this instruction, the failure of the court to instruct on petit larceny was not an error prejudicial to defendant, but in his favor, because if the jury believed his testimony we would be discharged forever from the offense of taking this money from the cash register in Koebbe’s saloon. Sec. 5115, R. S. 1909'.
   BROWN, J.

Defendant appeals from a judgment of the circuit court of St. Louis City sentencing him to serve five years in the penitentiary for the alleged crime of robbery in the first degree, as denounced by section 4530, Revised Statutes 1909.

The evidence on the part of the State strongly tended to prove that defendant entered a saloon kept by one Koebbe, and by seizing and choking Koebbe’s wife, who was temporarily in charge of said saloon, forced her to permit bim to take about twenty dollars from the cash register, which he carried away and converted to his own use.

It is unnecessary to incumber this opinion with the detailed evidence on the part of the State — it amply supports the verdict and judgment. The only error assigned upon which defendant seriously insists for reversal is the failure' of the trial court to instruct the jury on the crime of petit larceny.

Defendant’s learned counsel assert that the defendant’s evidence tends to prove that he did not use any violence towards Mrs. Koebbe, and did not place her in fear of immediate injury to her person while he was taldng the money, and, therefore, the court should have given his requested instruction on petit larceny.

That part of defendant’s testimony which it is contended presents the issue of petit larceny is as follows :

“Q. Did you drinlc any beer in the saloon, Andreas? A. I asked for a glass of beer.

“Q. Was it served? Did you get it? A. Yes, sir.

“Q. Now, tell the jury what happened, in your own way, as near as you remember it. A. Mrs. Koebbe was standing behind the bar and we was making fun there, talking like that, and I walked behind the bar and rang the cash register and took the money out, and she says I should don’t hurt her.

“Q. Speak louder. A. She told me that I should don’t hurt her, and I says, ‘No, I ain’t g'oing to do nothing’; and I walked right outside. That is all I know about it.

“Q. Did you take the money? A. Yes, sir.

“Q. That is all you know about it? A . Yes, sir.

“Q. Now, Andreas, I will ask you did you grab’ her by the throat, or put your hands on her, or threaten to kill her, or anything like that? A. No, sir, not a word like that. She was excited and nervous, and she was standing there talking.

“Q. But you did take the money, did you? A. Yes, sir.

‘ ‘ Q. Then when you got the money what did you do? A. I walked out. . . .

“Q. And you told her that you wasn’t going to kill her if she didn’t hollow? A. No, sir; I just told her I wouldn’t hurt her.

‘ ‘ Q. You did tell her that you would not hurt her if she did not hollow? A. No, sir.

“Q. What did you say to her? A. I just said to her, ‘I ain’t going to hurt you.’ She said, ‘D'on’t hurt me, take all.you want.’

“Q. And just before you went behind there you •ordered a glass of beer and she set that on the counter? A. Yes, sir.

“Q. And instead of taking the beer that is when you ran behind her? A. .No, sir; she took the nickel and went to put it in the register, and I walked back there.

“Q. You tell this jury you did not touch her at all? A. Yes,’sir.

“Q. And had not threatened to kill her ? A. No, sir. . . .

“Q. I will ask you whether you told this officer, Sergeant Hussey, or any other of these officers, that you had gotten Mrs. Koebbe by the throat, or threatened to kill her ? Did you tell them anything like that? A. No, sir.

“ Q. Did anything like that happen, as near as you can remember? A. No, sir. . . ■.

“Mr. Shaner: You say then, if I understand you correctly, that you know everything that you did on the inside of that saloon but you are not sure of everything you did on the outside; is that correct ? Answer that, yes or no.

“ Judge Zachritz: I object to that. He hasn’t stated that.

“A. I know I didn’t do much on the inside, just took that money and walked out; that is all I done.

“Q. If you were drunk and don’t know what you did, you don’t know but what you put your hands on this woman there, as she says you did, do you? A. I know I didn’t do that.

“Q. You didn’t touch that old woman in there? A. No, sir.

“Q. That is correct? A. Yes, sir.”

I. When this case was heard in Division TwO’ of this court, the writer was of the opinion that defendant’s own evidence amounted to an admission that at the time he took the money from the cash register he placed Mrs. Koebbe in fear of immediate injury to her person, and, therefore, I favored the affirmance of the judgment appealed from. But upon a reargument of the case in Banc, and a re-examination of the evidence, I am convinced that the testimony of defendant did warrant an instruction on the crime of petit larceny.

The crime of robbery in the first degree includes all the elements of larceny with the added acts of violence or putting in fear, etc., so that, under section 4904, Revised Statutes 1909, if there was substantial evidence that in taking the money from Koebbe’s cash register the defendant did not assault Mrs. Koebbe nor place her in fear of immediate injury to her person, then it became the duty of the trial court to instruct the jury that it might find defendant guilty of petit larceny provided it believed that he took, stole and carried away the money from Koebbe’s: cash register, and that he was not guilty of robbery as that crime was defined in the instructions. Though Mrs. Koebbe may have been scared, that fact alone does not convert defendant’s acts in taking the money into the crime of robbery, unless he intentionally did or said something which placed her in fear of immediate injury to her person.

However improbable the testimony of defendant may have been the court could not refuse to submit it to the jury. By refusing and failing to give any instruction on the crime of petit larceny the court arbitrarily refused to allow the jury to consider defendant’s evidence, and thereby committed reversible error. [State v. Richardson, 194 Mo. 326; State v. McBroom, 238 Mo. 495; State v. Hoag, 232 Mo. 308, l. c. 316; State v. Bidstrup, 237 Mo. 273, l. c. 286.]

Other alleged errors are assigned by defendant, but, if errors at all, they are not likely to reoccur upon another trial of this canse; therefore we have not considered them.

For the error of the circuit court in failing to submit to the jury the issue of petit larceny as presented by defendant’s evidence, its judgment must be reversed and the cause remanded for a new trial. It is so ordered. All concur except Walker, J., who dissents in separate opinion filed.

WALKER, J

I. I do not concur in the majority opinion in its holding that an instruction for petit larceny was authorized upon the testimony of appellant ; upon this testimony he was, if not guilty of robbery, entitled to an acquittal. He denies the assault, and as confirmatory of his testimony that he did not put the woman, who was in possession of the money, in fear of immediate injury, he says, “I told her I wouldn’t hurt her,” to which she replied, “Don’t hurt me, take all you want. ’ ’ In the absence of an assault or putting in fear, one or the other necessarily essential to the crime, there can be no robbery, and if the owner of the property under these circumstances consented to the taking of the same, there is absent an equally vital essential to the existence of the lesser offense, and there can be no larceny. It is elementary that the crime of larceny always includes the taking and conversion of property without the consent of the owner. Hence, there can be no larceny if, as the appellant contends, the owner voluntarily parted with the possession of the property. [State v. Court, 225 Mo. 609, 614; State v. Anderson, 186 Mo. 25, 35; State v. Waller, 174 Mo. 518, 523; State v. Storts, 138 Mo. 127, 137.] This rule is so universal that the employment of further space in the citation of authorities in its support is not necessary, except to say that it has been held in Colorado that when property is taken with the consent of the owner, no matter how guilty may have been the purpose and intent of the taker, there is no larceny. [Connor v. People, 36 Am. St. (Col.) 295.] Measuring the grade of the offense by appellant’s testimony alone, he was, therefore, not entitled to an instruction for petit larceny, and the trial court ruled correctly in refusing same.

II. However, there is another equally cogent reason why the instruction should not have been given. While it is true that a defendant, when charged with an offense consisting of different grades, or where one offense includes another, may be entitled, under proper testimony, to an instruction for a lesser grade of offense .than the one with which he is. charged, although his testimony alone may afford the basis for such an instruction, there is a well-established exception to this rule, viz.: that the testimony, on which the instruction for a lesser grade of offense is based, must not be inconsistent and unreasonable when compared with all the other testimony in the case, and, if so, it should not be given.

In view of a different announcement of the rule in State v. Richardson, 194 Mo. 326, 344, which is not and does not assume to be supported by any authority, to the effect that a defendant is entitled to such an instruction as we have referred to, no matter how inconsistent and unreasonable may have been his statements, we deem it not improper to. summon at least a few of the well-reasoned authorities in this' jurisdiction to bear witness in opposition to the rule as thus announced.

In State v. Nelson, 118 Mo. 124, the accused was convicted of an assault with intent to kill, in having shot at an officer with a pistol; the court held that while a defendant in a criminal case has a right (which we do not question here) to testify as to the intent with which he did the act, he is not entitled to an instruction upon his oral testimony where it is contradicted by the physical facts.

In Payne v. Railroad, 136 Mo. 562, 583, the court holds in passing upon certain testimony not deemed in accord with the physical facts, that: “Even in criminal eases, involving liberty or life, we have repeatedly ruled that, if a party testifies directly in the face of, and in opposition to, obvious physical facts, neither courts nor juries are bound to stultify themselves by giving credence to such testimony,” citing in support thereof a number of Missouri cases.

In State v. Pollard, 139 Mo. 220, 228, this court says: “Heretofore we have said, and we have frequently repeated the observation, that neither courts nor juries are required to yield credence to the statements of a witness who, to save himself from justly merited punishment, challenges the array of all the physical facts in the case, and then boldly invokes instructions based upon such simulated evidence,” citing in support thereof some six earlier cases decided by this court.

In State v. Hamilton, 170 Mo. 377, an assault with intent to kill, it was held that an instruction will not be authorized where the defendant testifies that he shot simply to scare parties and not to do them any harm; that his intention will be measured and estimated by his acts and not by his subsequent explanatory words.

In State v. Fraga, 199 Mo. 127, 136, it is held in a murder case that where the facts are clearly inconsistent with the defendant’s account of the homicide, he is not entitled to an instruction on the ground of self-defense, citing in support thereof a number of cases.

In State v. Vaughan, 200 Mo. 1, 22, it is held that where the defendant testified to a pretended agreement and distinct understanding with others that no one should be hurt or killed in the perpetration of a felony agreed upon, which testimony was inconsistent with the physical facts, the court should for that reason alone refuse such an instruction. Courts are not required to yield credence to the statement of a defendant absolutely inconsistent with the physical facts and base an instruction on such simulated evidence.

In State v. King, 203 Mo. 560, 571, a murder case, the defendant sought to have the court give an instruction for a. lower degree of homicide based on his own testimony, which was refused on the ground that it was in contradiction of all the other testimony in the case, and that “neither courts nor juries are required to stultify themselves by rejecting the immutable facts in a case.”

In State v. Arnold, 206 Mo. 589, 600, an assault with intent to kill, the court holds that neither courts nor juries are required to accept as true, evidence which contradicts the admitted physical facts in a ease. •

In State v. Tucker, 232 Mo. 1, 18, it is held that where the statements of the defendant so contradict the physical facts, and his conduct was so unreasonable and inconsistent with the experience of mankind, that the court was not bound to believe him, the court was not bound to instruct the jury on his testimony for a less grade of the offense than murder in the first degrée.

. A brief review of the facts in the case at bar, undethe rule announced in the authorities cited, will enable it to be determined whether an instruction for petit larceny should have been given.

Appellant and his cousin, both under the influence of liquor — a fact repeatedly sought to be emphasized by the counsel for the defense during the trial — went to Koebbe’s saloon, at the time in charge of his wife, and, finding her álone, the cousin remained' outside, evidently on the lookout, while appellant caught Mrs. Koebbe by the throat and told her to shut up; that if she did not, he would kill her; he then dragged her about half length of the counter or bar, to where the cash register was located, and, while holding her with one hand, he opened the register with the other and took out the money. During this time she was not able to speak, but, recovering her voice, she said, “You can have that money but leave me alone; don’t kill me.” He then dragged her back to the end of the counter or har, and ran out; this in brief is the testimony for the State, except that the police officers, who arrested appellant and his cousin, testified that both made statements admitting the offense as charged.

The probative force of evidence must, under all circumstances, be measured by the standards of average human intelligence and the ordinary experience of men. Taking into consideration the fact that the appellant was bent on taking the money, which is not disputed, the testimony for the State is not a strained or distorted account of what probably happened. A woman of Mrs. Koebbe’s station and environment, especially when employed as a barkeeper in her husband’s absence, was little likely to be alarmed, much less intimidated by any words, although framed as threats, of a man under the influence of liquor. As the appellant was of the same nationality as Mrs. Koebbe, and had lived from boyhood in the neighborhood, he doubtless knew her personally and realized full well that nothing short of an assault, coupled with threats, would enable him to’ accomplish his purpose. He employed both, and forcibly held her while he robbed the register.

Defendants in criminal cases should, under all circumstances, be accorded fair and impartial trials, but where, as in this case, the proof of guilt is convincing, and the’ statements of the defendant are so contradictory to and inconsistent with all the other testimony, we cannot, without .subscribing to the violation of a rule in the administration of the criminal law, which we regard as established beyond cavil, agree with the majority that the instruction in question should have been given.

' A most earnest and vigorous defense was made by counsel for the appellant, and he was allowed such latitude that the transcript is replete with testimony in his client’s behalf, which, under a proper regard for the rules of evidence, should have been excluded; notwithstanding this, the jurors under their oaths found, beyond a reasonable doubt, that appellant was guilty as charged, and this finding was approved by the trial court in its overruling of the motion for a new trial.

I am, therefore, of the opinion that the judgment of the trial court should be affirmed.


author: BOND, J. LAMM, C. J. WOODSON, J.

text:
    THE STATE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    In Banc,
    December 24, 1913.
    1. LEGISLATIVE POWER: Limitations. The power of the General Assembly to enact laws is subject in all matters to the limitations of the Constitution, whether they be expressed by prohibitory clauses or by affirmative provisions relating to the subject-matter. No attempted enactment which contravenes either limitation is valid.
    2. FINES: To Go Into Road Fund: How Far Unconstitutional. So much of Sec. 3158, R.‘ S. 1909, requiring a railroad company to receive and ship grain and other freight consigned to its , care for transportation, as attempts to divert the fines and penalties imposed by the act to the good roads fund, is obnoxious to the provision of the Constitution declaring that. “the clear proceeds of all penalties and forfeitures shall 'belong to' the county school fund;” and as such attempted diversion of the fines was the sole purpose for the enactment of that part of the act, the clause giving the penalties to the good roads fund is invalid, and the fines imposed by it cannot be collected for the school fund or for.any other fund. That the primary purpose of this clause was to add to the good roads fund the penalties imposed for its violation is manifest from an examination of the words and objects of the clause, and also> by tracing the history and development of the section and its various amendments.

      Held, by LAMM, C. J., concurring, that by the clause creating the penalty the lawmaker has stamped upon the penalty itself his purpose in creating it; he has created the penalty for an expressed unconstitutional purpose, and therefore the clause imposing the penalty is void.

      Held, by WOODSON, J., that the history and development of the section shows that the clause imposing the fine would never have been enacted had it not been for its words giving the penalty to the good roads fund, and that being in contravention of the constitutional provision requiring penalties and forfeitures to. go into the school fund, the clause is invalid.
    3. -:--: Substituting School Fund for Good Roads Fund. The court cannot strike out the words “good roads fund” in said act and substitute therefor the words “school fund,” when to do so would be to subvert the plain purpose of the lawmakers, for that would amount to judicial legislation. The primary purpose of the act being to create a good roads fund, and the clause manifesting that purpose not being separable from its other purposes, • the court must determine the • meaning of the clause from the words it uses.
    Appeal from Iron Circuit Court. — Hon. E. M. Hearing .Judge.
    Reversed.

      Robert T. Railey and A. A. Mosley for appellant.
    (1) The penalty clause of Sec. 3158, R. S. 1909, is invalid, and there being no other provision of law attempting to inflict a penalty for the alleged violation of said. section, the present action must fail, as only a penalty is sought to be recovered herein. The Legislature is not bound to provide a penalty in cases of this character, but if it does attempt to do so, it must appear upon its face that said penalty is for the benefit of the school fund, or the matter will stand as though no penalty had been imposed. There is no provision of law in our Constitution, or in our statutes, which authorizes either the jury, the trial court dr the appellate tribunal to exercise a legislative function by striking out plain legislative language from a section and substituting in a highly penal statute language ■which the Legislature did not use or intend to use. Butts v. Merchants’ & Miners’ Tr. Co., 33 U. S. Sup. Ct. 966; Railroad v. Guitierrez, 215 U. S. 87; Railroad v. McKendree, 203 U. S, 514; U. S. v. Ju Toy, 198 U. S. 253; James v. Bowman, 190 U. S. 127; Baldwin v. Franks, 120 U. S. 678; Poindexter v. Greenhow, 114 U. S. 80; Trademark Cases, 100 U. S. 82; United States v. Harris, 106 U. S. 629; Allen v. Louisiana, 103 U. S. 80; Trademark Cases, 100 U. S. 82; United States v. Reese, 92 U. S. 214; Karem v. United States, 121 Fed. 250; State v. Bockstruck, 136 Mo. 335; State v. Newell, 140 Mo. 282; State ex rel. v. Warner, 197 Mo. 650; State ex rel. v. Nast, 209 Mo. 708; Cooley on Constitutional Limitations (6 Ed.), 209. (2) Section 3158 was first passed in 1905 (Laws 1905; p. 113), and it neither directly nor inferentially indicates any intention upon the part of our Legislature to penalize the railroads of the State for the benefit of the school fund, or to inflict any penalty at all, unless such penalty should go to the good roads fund. This conclusion is not unreasonable, because the Legislature in all of its former legislation upon the subject in 1872 and 1881 had never penalized the roads at all. Appellant, therefore, insists that, in construing a highly penal section like section 3158, words should not be stricken therefrom and new language, never used nor intended to be used by the Legislature, inserted therein. If the section as enacted by the Legislature is invalid, then 'the entire penal portion of the section should be declared unconstitutional and void. Butts v. M. & M. Ir. Co., 33 U. S. Sup. Ct. 964; Railroad v. Gutierrez, 215 U. S. 97; Railroad v. McKendree, 203 U. S. 514; Civil Rights Case, 109 U. S. 3; Allen v. Louisiana, 103 U. S. 80; Warren v. Mayor, 2 Gray (Mass.), 84; United States v. Reese, 92 U. S. 215. (3) The elementary rule of law in this State is to the effect that in construing penal statutes, like the one at bar, they are to be strictly construed as against tbe State and liberally construed in favor of the defendant. State ex rel. v. Railroad, 238 Mo. 612; State ex rel. v. Bland, 144 Mo. 534; State ex rel. v. Smith, 114 Mo'. 180; State v. McCance, 110 Mo. 398; Connell v. Tel. Co., 108 Mo. 49; Rozelle v. Harmon, 103 Mo. 339; State v. Bryant,-90 Mo. 537; Manz v. Railroad, 87 Mo. 278; State to use v. Railroad, 83 Mo. 144; Fusz v. Spaunhorst, 67 Mo. 256; Kritzer v. Wilson, 19 Mo. 327; Riddick v. Governor, 1 Mo. 147; State ex rel. v. Railroad, 105 Mo. App. 211. (4) The court, by judicial legislation, has no right arbitrarily to strike from said section the language used by the Legislature, in which it is said that for a violation of the section “the railway company shall forfeit and pay to the good roads fund of this State the sum of ten dollars for each day they shall so fail,” or any part thereof. In other words, the language above quoted, having been used by the Legislature in the amendment of 1905,' cannot be changed so as. to read into said section a civil right of action for the benefit of the school fund, when there is nothing in any portion of the section which would warrant such a construction. State v. Bockstruck, 136 Mo. 335; Cooley on Const. Lim. (6 Ed.), 209.

      Gardiner Lathrop, T. It. Morrow, W. F. Evans, Sam H. West, F. G. Dillard, Joseph M. Bryson, J. L. Minnis, S.'W. Bio ore, Scarritt é Scarritt and O. BI. Spencer for amici curiae.

      John T. BarJcer, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) Appellant is in error when it contends that where a portion of a statute is unconstitutional the whole statute must fall. 1 Lewis’s Sutherland’s Statutory Construction, sec. 296; State v. Newell, 140 Mo. 287. If we eliminate the words “the good roads fund of” from the penalty clause of said section 3158, then we have left a full and complete enactment. It covers every intention of the Legislature. It is left then in the .same condition in which practically every statute of criminal law which provides a penalty is in. In fact, the great body of criminal law, as administered under the. Constitution of this State, is silent as to where the particular fine, forfeiture or penalty shall go. By adding those words no force or strength is added to the statute. Such words, if added, must be in harmony with the Constitution. If hot in harmony with the Constitution, such words will be ignored, or treated as surplusage, and the law will stand as though such words had been omitted. Every presumption is indulged in favor of the validity of the act. State v. Douglass, 50 Mo. 597; State v. Thompson, 144 Mo. 314; State ex rel. v. Aloe, 152 Mo. 477; In re Bled,soe Hill, 200 Mo. 646; State ex rel. v. McIntosh, 205 Mo. 602. (2) The forfeiture clause of Sec. 3158, R. S. 1909, is constitutional and valid and should be enforced in this case. Railroad v. State, 79 Tex. 264; State ex rel. v. Railroad, 83 Mo. 144; State ex rel. v. Railroad, 32 Fed. 722; Railroad v. Com., 85 Kan. 229. (3) Appellant contends that by reason of the fact that the statute provides that ultimate beneficiary of the forfeiture, which is declared by the act, shall g*o “to the good roads fund” instead of to the public school fund as named in the Constitution, the whole act, so far as the imposition and the collection of the forfeiture are concerned, is void. This by no means follows as a logical sequence. The Legislature in the amendment of 1905 had three separate and distinct objects in view: (a) The imposition of a duty upon' railroad companies toward cities of the class named in the section; (b) the imposition of a penalty for failure to discharge the imposed duty, and (c) the method for collecting and enforcing that penalty. To these may be added a fourth provision which the Legislature incidentally provided by saying that the money should go to the good roads fund instead of giving it to the public school fund. By admitting that the fourth provision is unconstitutional and invalid and cannot be enforced for the benefit of the good roads fund, we do not destroy the other three main objects sought to be accomplished by .this section. Railroad v. State, 55 Ark. 200; Harro'd v. Latham, 77 Kan. 466. When we admit that the statute imposes a duty —that that duty has been violated by the railway company — and the statute prescribes a remedy for collecting the forfeiture given by the statute for such violation, we cannot relieve the railroad company from all liability in the case simply because the ultimate beneficiary of this fund is given by the statute to a place contrary to the constitutional provisions. This is especially true when the suit is not brought individually by such beneficiary. In good conscience the railroad company should not be permitted to willfully and flagrantly violate the plain mandatory terms of the statute and then come into this court and excuse itself by reason of the fact that the money which it owes the public is not correctly disposed of by the statute. The debt is due the public by reason of the railroad company’s failing and refusing to comply with the requirements of law. Then why should the public be deprived of this money, and why should the railroad company be excused from all liability for its violations'? As said in the Kansas case: “This statute provides proper means for collecting the penalties. It then provides for a disposition of such penalties contrary to the constitutional mandate. This provision being invalid, the fund will be disposed of as the Constitution directs. This disposition in no manner violates the legislative intent, nor does it impair the efficacy of the law.” The doctrine of these cases has been recognized by this court in the case of State v. Newell, 140 Mo. 288.

      STATEMENT.
    This is a suit by the State to recover ten dollars per day for the alleged violation by defendant of the provisions of section 3158 of the Revised Statutes of 1909, for a period of 110 days. The'answer was a general denial and that said statute was unconstitutional as a whole and particularly as to its concluding paragraph which is set forth in italic type in the ■following quotation of the statute.
    “Sec. 3158. To deliver and receive freight at crossing of other roads — to maintain switches — penalty for failure. — Every railroad corporation organized or doing business under the laws of this State, or authority thereof, shall receive and deliver all grain and other freight consigned to its care for transportation at the crossings and junctions of all other railroads, canals and navigable rivers; and shall at all cities and towns along the line of their railroad having a population of two hundred inhabitants or more, construct and maintain ■ switches and freight houses for the receipt and delivery of grain and other freight that may be tendered such railroad corporation for transportation; and shall stop at least one train daily thereat to receive and unload freight. And whenever in the opinion of the Railroad and Warehouse Commissioners the amount of business is sufficient to justify the same, such railroad corporation shall retain a freight agent for the purpose of receiving and delivery of grain and other freight. Any railroad corporation failing or refusing to comply with the provisions of this section after thirty days notice given shall forfeit and pay to the good roads fund of this State the sum of ten dollars for each day they shall so fail o.r refuse to comply with the provisions of this section, to be recovered in any court of competent jurisdiction by civil action brought in the name of the State by the prosecuting attorney of the

      county wherein such failure or refusal occurs. [R. S. 1899, sec. 1118; amended, Laws 1905, p. 113.]”
    The last paragraph of this statute was enacted in 1905. [Laws 1905, p. 113.] The preceding portions were enacted respectively in 1872 (Laws 1871-2, pp. 73-4) and in 1881 (Laws 1881, pp. 77-8). When first enacted it provided, first, for a private suit by an injured party for damages caused by disobedience to its commands, and, secondly, for a second violation of its provisions, a public fine of $1000 was imposed; third, for repeated violations of the statute it authorized proceedings for a receivership. These penalties continued for a few years, when they were repealed (1881) and in lieu of them the Legislature gave the owners of the freight a right to sue for damages occasioned by violations of the act as then amended. The act continued in that state until finally amended (1905) when the shipper’s right of action was taken away, and in lieu thereof the italicized' portion of above act was added.
    On the trial there was evidence tending to prove the charges made in the petition that defendant had not complied with the provisions- of the statute under conditions calling for its application, for the period mentioned, and plaintiff recovered judgment for $1100 from which defendant duly appealed.
   OPINION.

I.

BOND, J.

(After stating the facts as above). — In considering this case we shall confine our views to the claim that the penalty clause of the statute supra is void under the provisions of the Constitution giving the proceeds of fines to the school fund of the respective counties, since that question goes to the root of the right to recover in this action, which is only a suit for the penalty provided by the statute.

Power ofLegislature.

The power of the General Assembly to enact laws is subject in all matters to the limitations °f the Constitution of this State, whether they be expressed by prohibitory clauses, or by affirmative provisions relating to the matter in hand. Both methods of restriction are equally binding on the lawmaking power and no valid law can be enacted by it which contravenes either. [Redmond v. Railroad, 225 Mo. l. c. 731.]

In this case the constitutional restraint upon the Legislature is in the form of an affirmative provision of the organic law that “the clear proceeds of all penalties and forfeitures . . . shall belong to . . . the county public school fund.” [Constitution, art. 11, sec. 8.]

Unquestionably the attempted diversion of any such penalties or forfeitures by the Legislature would nullify the act, if it was passed for that sole purpose, for the Constitution kav*:ag spoken as to the proper receptacle of such funds, the power of the Legislature to speak in a contrary way is stilled and ceases to exist until the constitutional provision shall be amended or abrogated. It is evident that so much of the penalty clause of the act under review as purports to create a penalty payable to the good roads fund is void.

But does this conclusion invalidate the penalty clause so that a different beneficiary .to the one specifically designated by the Legislature may not claim thereunder, upon the theory that it was the intention of the Legislature to create a penalty in favor of such other beneficiary though not mentioned in' the act?

The test in such case is whether, considering the words and objects of - the. law or section thereof containing the unconstitutional provision, we would be warranted in holding that it would have been enacted in the changed form if the nnconstitntionality of its present state was known at the time.

In the present case, the penalty clause under review is void on its face in so far as it purports to create a penalty or forfeiture payable to the good roads fund.

"With that in mind, we have searched the language of the penalty clause added by the amendment of 1905, and we fail to discover any basis in its terms or purposes, which could support a legal intendment that it was enacted for any other object than the creation of a debt enforceable on behalf of the good roads fund. That purpose is explicitly stated in the Laws of 1905, p. 113, and no other purpose is indicated by any of the language employed in said amendment than the single and indivisible one of creating a specific debt for the benefit of the good roads «fund which the amendment sought to accomplish by striking out the provision which the former act contained, affording a right of private action to the shipper of goods and substituting therefor a specific and fixed sum to be “forfeited and paid” to the good roads fund, and recoverable by a civil action. It will be observed that the session act does not say that the disobedient carrier shall pay a fine, and thereafter provide such fine shall inure to the good roads fund, nor does it contain a word from which a rational inference can be drawn that it was the legislative motive first to create a fine, and then to indicate its recipient. Had that form of phraseology been used, some ground might exist for "the contention that the act was primarily designed to create a penalty or forfeiture, and secondarily to give the benefit of it .to the good roads fund, in which event we would sustain so much of it as fixed the penalty. This was ruled in State v. Bockstruck, 136 Mo. l. c. 340; 359, where section 7 then held in judgment prescribed a fine, and section 11 later provided a disposition of it into the State Treasury, and where the latter section was held to be void without affecting’ the validity of the former. To the same effect was the ruling made in State v. Newell, 140 Mo. 282. But there is no such divisibility in the language before us, which is direct and preclusive, to-wit: “ . . . shall forfeit and 'pay to the good roads funds of this State” the sum of :$10 for each day of noncompliance. These words «imply create a specific fund for a single purpose in a single section or paragraph which cannot be separated without affecting the sense, meaning and object had in mind by the Legislature when they were selected. As they stand, they do not imply that the fund thus created was intended primarily for the unnamed school fund and not for the named good roads fund. The Legislature no more had in mind the school fund than it did any other beneficiary of the various kinds who are the objects of the bounty of the State, or who comprise its eleemosynary institutions. Had they thought of the public schools as the constitutional do-nee of fines and penalties they would not have enacted a law, which they must have known would be a simple nullity; for we are not permitted to ascribe the absurd motive to them of intentionally violating the Constitution of the State or knowingly enacting a nugatory law. These consideration's convince us that there was no thought or purpose on the part of the lawmakers •when they enacted the penalty clause, that it should be given to some other than the particular beneficiary named by them, and satisfy us that but for creating or raising money for the good roads fund the penalty clause of 1905 would never have been adopted.

II.

In the able brief 'of the learned counsel for the State it is said, in effect, that the previous history of the main act to which the penalty clause was attached in 1905 indicates that the Legislature then intended to make the main act more effective by imposing a fine enforceable by the direct action of the State and which when collected should be disposed of according to the Constitution.

A review of the history of the act does not impress us with the logic of this suggestion. When the act was originally passed it was expressed as section six of the Laws of 1872, pp. 73-4, and provided in substance that railroad corporations should receive and deliver grain at the crossings and junctions of all other railroads, canals and navigable rivers. [R. S. 1879, sec. 817.] The secondary public fine for the violation of the original act was abrogated in the revision of 1879, leaving only a right of private action for damages. to the consignee or person entitled to the control of such property. The next amendment was in 1881. (R. S. 1889, sec. 2622), and required the additional: duty of constructing switches and freight houses at. towns containing two hundred inhabitants and stopping one train a day there to receive and unload freight, and the only penalty attached to the violation of this amendment was a right of action given to the consignee or person entitled to the control of the property. [R. S. 1889, secs. 2622, 2618.] The main act was finally amended in 1905 and is now complete as section 3158 set out in the foregoing statement. Prom the passage of the original act, and during all of its transmutations until its present form, no public penalty for its enforcement has existed later than 1879, although during the whole period of its existence a primary provision for its enforcement by a private suit has been continued. The secondary penalty imposed in favor of the public was abolished by the provisions of 1879 and has never reappeared until the amendment of 1905, if such a construction can be given to that amendment. This cannot be done on any theory harmonizing with the prior trend of legislative thought, as that has been shown by the action taken at the various stages of the evolution of the entire act in its present form, for the short-lived secondary purpose of affording the public revenue from the act disappeared upon its first amendment, and the subsequent amendments simply afforded a right of private recovery by private individuals by civil action, which was finally changed so as to give the benefit of a civil action to the good roads fund. If the Legislature felt any duty in 1905 to make more effective provisions for the enforcement of the act, as suggested by the learned counsel for the State, by turning its penalties and forfeitures over to the State, they certainly did not manifest that motive during the anterior history of the act. And that they did not in fact carry out such purpose in 1905, is apparent from a simple inspection of the final amendment then put to the act. We conclude that there is nothing in the development of the present act from prior acts, which justifies the assumption that when the finishing touch was given to it, the Legislature entertained any unexpressed purpose to create the penalty then provided for the benefit of the school ■ fund.

On the contrary we think the Legislature meant exactly what it said, when it undertook to bestow the penalties and forfeitures of this act to the good roads fund. The creation of such a fund was then and is now a matter of proper concern and keen interest-to the people of this State and necessarily appealed to their representatives when engaged in the task of bettering the laws of the State. That the urgency of this appeal was felt is shown by the abolition for that purpose of the prior statutory right of action to the owner of the property.

III.

The learned counsel for the State argues that if the sentence of the penalty clause he dismembered by erasing the name of the payee of the penalty, a valid act would spring into existence, because the effect of the constitutional provision would be to olate “school funds” for the erasure of the legislative beneficiary. But would this be any the lebss an interpolation of a different payee, than if the former name was stricken out and the new name written in. We do not understand that it is pretended that a sentence which completely expresses the thought of its author, can be physically spoliated so as to express a contrary idea and still continue to bear the meaning which it carried before. There is no rule of construction which would tolerate such an abnormality. So in this case the learned counsel would hardly contend if there were no general constitutional provisions whereby all fines go to the school fund, that the legislative purpose to give this fine to the school fund could be arrived at by striking out the words ‘ ‘ good roads ’ ’ and substituting the words ‘ ‘ school fund. ’ ’ For that would be a bold and palpable act of judicial legislation by interpolating words destructive of the plain purpose of the lawmakers. Certainly the effect would be the same if the same thing is accomplished by erasure and the supplial of other words, as the legal effect of a fortuitous provision of the Constitution that all fines shall go to the “school fund.” The legislative intent is no less thwarted in the one ease than the other, the only difference being that in the one instance the new words would be actually inserted in the act, while in the other they would be automatically read into the act perforce the Constitution, in a way just as antipodal to the expressed intention of the Legislature as if the words “school fund” had been written into the act after the erasure of the designated payee. For this reason we are unable to concur in the argument of the learned counsel for the State' that it is permissible in order to sustain the constitutionality of the paragraphs in question, that the sentence expressing the purpose and notice of the Legislature, should be so altered by erasure and legal substitution of words, as to give a meaning essentially different from that entertained and expressed bv the framers of the language.

IV.

Neither do we think the persuasive authorities cited in the latest brief for the State, Railroad v. State, 55 Ark. l. c. 207-8; Harrod v. Latham, 77 Kan. l. c. 469, are in point. In the Arkansas case the fine was divided, part of it being given to an informer, an improper desti nation under the Constitution of that State. The act was held constitutional because its words showed the intention to create a fine additional to that portion which it gave to the informer, and the court could well hold, as it did, that the primary purpose of the Legislature to create a fine would justify sustaining’ the law on that ground and that this general intent could be' effected by applying the part of the fine improperly allowed to the same purpose which the other part of the fine would go under the laws of Arkansas. The Kansas case was like the Arkansas except that the fines imposed by one section of the Kansas act were in another section divided between the county and the informer. It was correctly held in that case that the-later section only, being separable and independent of the former, was unconstitutional. In the case at bar the pith of the amendment of 1905 is expressed in one paragraph or section and in one sentence, and for the reasons stated it does not fall within the purview of any of the authorities cited in the brief of the State. The act in question shows on its face that the creating of the fine of ten dollars a day was interdependent upon its payment to the good roads fund. Under the settled law this part of the act cannot remain valid if that payee is substituted by another. [Simpson v. Iron Works Co., 249 Mo. l. c. 391; State ex rel. v. Gordon, 236 Mo. l. c. 170.] We therefore hold that so much of. the section of the present statute now under review as is contained in the words copied in italic type in the foregoing statement is in contravention of the Constitution and void.

This conclusion goes no further than stated, and does not affect the remainder of the act as it now stands nor the right to compel obedience to its requirements by proper procedure, but the judgment rendered in this case, for the amount fixed in the unconstitutional penalty clause added to the act in 1905, is reversed.

Graves, Walker and Faris, JJ., concur; Lamm, G. J., and Woodson, J., concur in separate opinions. Brotan, J., dissents.

CONCURRING OPINION.

LAMM, C. J.

That the law necessarily involves the idea of punishment, and to that end employs language (the word “forfeit”) appropriate only to a penalty, that the penalty is directed to the punishment of a public wrong as contradistinguished from a private wrong (State ex rel. v. Warner, 197 Mo. l. c. 664), I think, is clear.

■That the “clear proceeds” of such penalty belong to the public school funds and that no such penalty can be created payable to any other object or to any person without violating the Constitution, is also clear. [Sec. 8, art. 11, Constitution; State v. Clifford, 124 Mo. 492; State ex rel. Clay County v. Railroad. 89 Mo. 562; State ex rel. v. Warner, 197 Mo. 650.]

We have also ruled that where the penalty is created, as by way of fine on conviction of misdemeanor, or otherwise, then, the mere fact that the lawmaker later, in some separable and other provision of his act, directs that it shall be diverted from its constitutional object or destination does not destroy the law altogether or the penalty or the misdemeanor and fine. They stand. The diversion, only, is struck down. [State v. Bockstruck, 136 Mo. 335; State v. Newell, 140 Mo. 282; State ex rel. v. Warner, 197 Mo. 650.]

But in none of those cases was .the language of the statute held in judgment the same as the language used in the statute in judgment in the instant case. In none of them did the lawmaker stamp upon the very penalty itself his purpose in creating it. He did not create it for an expressed purpose and write that purpose into the very language whereby he created the penalty so as to be part and parcel of it, and then make that purpose an unconstitutional one as here.

I have labored in my own mind to sustain the law, but am constrained to think it an unconstitutional exercise of the lawmaking power in the particular considered by my brother. It is much the same as if the lawmaker had said to the recalcitrant railroad: If you will, not obey the law and provide shipping facilities by rail, then by way of penalty you shall pay for building public roads whereby facilities for hauling may be encompassed. It thereby becomes a novelty, an experiment outside the Constitution and in spite of it. Indeed if an avowed unconstitutional purpose can ever make a law unconstitutional this law must fall.

I vote to concur.

SEPARATE OPINION.

WOODSON, J.

There can be no question but what that clause of the section of the statute under consideration, providing that the penalties and forfeitures prescribed for therein shall go to and paid into “the good roads fund of this State,” is clearly violative of section 8 of article 11 of the Constitution, which provides that they shall go to and be paid into and belong to the school funds of the State.

This seems to be conceded, by counsel for both parties; but their parting of ways seems to turn upon the question as to whether or not the Legislature would have enacted the statute as it now exists, had it not been for the clause giving the penalties to the road fund.

In my opinion, that question should be answered in the negative, and my reasons for so stating are, that the penalties prescribed by the Acts of 1872 and 1881, which constitute two of the three elements which make up the Act of 1905, were apparently sufficient to guarantee their obedience by the railroads of the country; that is, the penalties therein prescribed were in proportion to and in keeping with those imposed by the Legislature for the violation of kindred statutes governing no more serious offenses.

Moreover, the courts of the State cannot conscientiously close their eyes to the history and trend of legislation in this State, and in this country for that matter, which discloses an.ardent desire on the part of the lawmaking power to strain every point in favor of procuring funds for the construction, maintenance and improvement of public highways throughout the State and of the United States; and in my opinion the amendment of 1905 would never have been enacted had it not been for the insertion of the objectionable clause previously mentioned.

I am, therefore, of the opinion that the judgmént of the circuit court was erroneous, and that same should be reversed with directions to enter judgment for the defendant.