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    THE STATE v. McCARVER, Appellant.
    Division Two,
    March 29, 1906.
    1. CHANGE OF VENUE: Prejudice of Inhabitants: Conflicting Evidence: Trial Court’s Discretion. Where the evidence, upon defendant’s application for a change of venue on the ground of the prejudice of the inhabitants of the county against him, is conflicting, the trial court does not abuse its discretion in overruling the application, and its ruling will not be disturbed by the appellate court.

      2. JURISDICTION: Judge of Fifteenth Judicial Circuit: Criminal Case in Another Circuit. The judge of the Fifteenth Judicial Circuit has authority to try a criminal case in another circuit when requested so to do by the judge of such other circuit, who has been disqualified, although he has no criminal jurisdiction in his own circuit.
    3. JUROR: Challenge: General Objection. Challenges for cause must be specifically stated. General objections to jurors can not be considered in the appellate court.
    4. -: Opinion: Newspaper Reports. Jurors who have formed opinions based upon newspaper reports are not thereby rendered incompetent, when they state that, notwithstanding such opinion, they can give the defendant a fair and impartial trial.
    5. LOST INDICTMENT: Supplied by Copy. Where the original indictment has been lost or destroyed, the trial court has authority to adopt a certified copy as the indictment in the case, provided it appears that the indictment had been returned into court and filed.
    6. REMARKS OF ATTORNEYS: No Exceptions: Affidavits. Alleged improper remarks of the prosecuting attorney can not be considered on appeal unless they are objected and excepted to and preserved in the bill of exceptions. They can not be shown by affidavits.
    7. INSTRUCTIONS: Failure to Instruct: General Objection. When the instructions of the court are read to the jury, if the defendant desires further instructions, he should call the court’s attention to its failure to instruct upon any matter deemed neccessary by defendant to be placed before the jury, and, in the event of the failure of the court to so instruct, he should except at the time.
    8. -: Accepted by Defendant. When defendant’s counsel,at his own request, is permitted to read an instruction of the . court before it is read to the jury, and, after doing so, remarks, “We have, no objection; that is the law,” defendant should not, on appeal, be heard to criticise the instruction.
    9. -: Read Together:. Self-Defense. Instructions numbered 5 and 7a, set out in the statement, when read together, as they should be, are held to properly present to the jury defendant’s right of self-defense.
    10. -: — : Murder, First Degree.- Instruction numbered 4, set out in the statement, held to properly define the offense of murder In the first degree.

      11. MURDER, FIRST DEGREE: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of murder in the first degree.
    Appeal from St. Francois Circuit Court. — Hon. Samuel Davis, Special Judge.
    Affirmed.

      W. S. Anthony, J. A. Abernathy and Jasper N. Burks for appellant.
    (1) It is the absolute right of the accused to be tried in the county where the ofíense is charged to have been committed, but the Legislature ¡considered that prejudice and popular feeling often run so high, that the great essential, to-wit, “an impartial jury,” could not be obtained in the county, and wisely provided for the protection of the accused by directing that when, on his application, this was shown to the court, he might be tried in another county where this prejudice did not exist. Unquestionably it secures to the accused an inestimable privilege, without which he must go through the form of a trial, whereas in fact his case is already prejudged. Such a statute should be liberally construed, so as to attain the purpose of its enactment. Secs. 2572, 2576, R. S. 1899; State v. Goddard, 146 Mo. 177; State v. Burgess, 78 Mo. 234. (2) By virtue of Laws of 1875, p. 42, amended in 1897, p. 80, Hon. Samuel Davis was deprived of all criminal jurisdiction conferred upon him as judge of the circuit court of the Fifteenth Judicial Circuit of Missouri, by section 22, article 11, of the Constitution, and section 1674, Revised Statutes 1889. Secs. 1 to 16, R. S. 1899, pp. 2564, 2465; Laws 1875, pp. 42, 43; Laws 1897, p. 8; State v. Daniels, 66 Mo. 192. (3) If a person has formed or expressed an opinion from conversing with a witness in the case, or read the sworn evidence taken before the coroner on preliminary examination, or if bis opinion bas been engendered by hearing tbe witnesses testify nnder oath in a former trial of tbe same case, tbe uniform practice bas been to reject such a person as incompetent to serve as a juror. An opinion formed under these conditions disqualifies him to act as an impartial juror, however much be may asseverate bis ability to render an impartial verdict. State v. Foley, 144 Mo. 611; Higgins v. Cone, 94 Ky. 54; People v. Yoakum, 53 Cal. 566. (4) Tbe order or judgment of tbe court was not sufficient to authorize tbe trial of defendant upon tbe purported copy of an indictment. Supplying tbe record is not finding tbe indictment. Courts should be careful in exercising tbe power of supplying lost records in a capital case. State v. Simpson, 67 Mo. 647; State v. Burks, 132 Mo. 363. (5) Tbe verdict is not supported by tbe evidence. And where a verdict must be ascribed to prejudice, passion, and not to that calm weighing of tbe facts in evidence which should always characterize tbe deliberations of a jury, tbe Supreme Court will interfere and set it aside. This rule is uniformly announced in civil cases, and in those which are criminal tbe Supreme Court bas never abdicated tbe right to overturn verdicts which are not based upon tbe corner stone of substantial justice. State v. Primm, 98 Mo. 368; State v. Packwood, 26 Mo. 340; State v. Burgdorf, 53 Mo. 65; State v. Mansfield, 41 Mo. 470; State v. Castor, 93 Mo. 242; State v. Gleason, 172 Mo. 259. (6) Instructions 5 and 7 limited tbe right of defendant to defend himself against Harry Lett, tbe deceased, alone, and was clearly erroneous; and instruction 7a given to tbe jury after argument of counsel did not cure tbe defect in this instruction, for tbe reason that instruction 7a is predicated solely on threats made by Leo Lett against defendant and not upon tbe testimony of witnesses as to tbe conversation before and appearances of Leo and Harry Lett at tbe time of the homicide. State v. Adler, 146 Mo. 19. Instruction 4 is erroneous, in this, that it instructs tbe jury that the intentional killing of a human being with a deadly weapon without any lawful provocation must be presumed to be murder in the first degree. We understand the law to be that an intentional killing with a deadly weapon alone raises the presumption of murder in the second degree, and the burden of showing deliberation rests upon the State. State v. Silk, 145 Mo. 240; State v. Fair lamb, 121 Mo. 137. The instructions as a whole did not properly declare all the law necessary for the jury in determining their verdict on the issues in' the case. They are confusing and conflicting. State v. Adler, 146 Mo. 18 ; State v. Silk, 145 Mo. 240.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Defendant’s application for a change of venue, on account of the alleged prejudice of the inhabitants of St. Francois county, was properly overruled. As the evidence on that subject was conflicting, this court will defer to the ruling of the trial court. State v. Clevenger, 156 Mo. 190; State v. Albright, 144 Mo. 638; State v. Wilson, 85 Mo. 139; State v. Whitten, 68 Mo. 91; State v. Northway, 164 Mo. 520; 1 Bish. New Crim. Proc. (4 Ed.), 72; 4 Ency. PI. and Pr., 499. (2) It is hardly necessary to argue that all of the circuit judges of Missouri do have jurisdiction of criminal causes. Constitution of Mo., sec. 22, art. 6; R. S. 1899, ■sec. 1673. Whenever the regular circuit judge is disqualified for any reason, it is his duty to call in a judge from some other circuit, who then possesses all of the qualifications of the regular circuit judge. R. S. 1899, secs. 1678, 2594. Again, whenever the regular judge is disqualified, he shall set the cause for trial and request and notify the judge of another circuit to come and try said cause. R. S. 1899, sec. 2597. The section of the statute on the subject of a change of venue from the criminal court of either comity in the Fifteenth judicial circuit, provides that the cause shall be transferred to the judge of the circuit court of said county; thereby conclusively showing that the- circuit judge of said circuit does possess criminal jurisdiction. 2 R. S. 1899, sec. 7, p. 2564; State v. Hudspeth, 159 Mo. 210; State v. Nelson, 166'Mo. 191; State v. Nelson, 181 Mo. 340; State v. Taylor, 171 Mo. 465; State v. Blitz, 171 Mo. 530. (3) At the time juror Westgrove was qualified, defendant simply objected to said juror, but assigned no reason for his objection. Such an objection is not sufficient; it should be more specific. State v. Evans, 161 Mo. 107; State v. McGrinnis, 158 Mo. 118.-The same may be said of jurors Sigman and Elser; but, in addition, they showed themselves clearly qualified, as they stated that the opinions they had formed were based upon what they had read in the newspapers. Such opinions would, in no way, prevent them from giving defendant a fair trial. Certainly, they were qualified. State v. Duffy, 124 Mo. 189; State v. Hunt, 141 Mo. 630'; State v. Brennan, 164 Mo. 507; State v. Reed, 137 Mo. 131. (4) “A lost indictment, like any other record, may be supplied by the court of whose record it constitutes a part. Of this, there can be no doubt.” State v. Burks, 132 Mo. 367; State v. Simpson, 67 Mo. 647; State v. Paul, 87 Mo. App. 47; State v. Smith, 71 Mo. 46; Railroad v. Holliday, 131 Mo. 454. As the duty devolves upon the trial court of restoring a lost information or indictment, the Supreme Court will presume that the trial court acted correctly; and “this presumption places the restored information in the same situation, and on the same plane as if the orignal information had not become a ‘dissolving view.’ ” State v. Walker, 167 Mo. 369. (5) The verdict is not the result of passion or prejudice, but is amply supported by the evidence. (6) Various persons make affidavits as to the alleged improper remarks of the prosecuting attorney, and his two assistants, during their arguments. These remarks are not preserved in the bill of exceptions, neither were the proper exceptions taken to them; hence, they can not be considered by this court. State v. McAfee, 148 Mo. 370; State v. Grant, 144 Mo. 66; State v. Lamb, 141 Mo. 298; State v. Meals, 184 Mo. 260; State v. Welsor, 117 Mo. 583; State v. Grant, 144 Mo. 66. (7) Instruction 4, on the subject of intentional and deliberate killing, has never been criticised by this court; not even by the Silk case (cited by appellant), in 145 Mo. 249; State v. Cushenberry, 157 Mo. 186.
   BURGESS, P. J.

On November 16, 1903, O. P. McCarver was indicted by the grand jury of St. Francois county for murder in the first degree for having, .at said county, on the 14th day of November, 1903, shot and killed with a pistol, one Harry Lett. Thereafter, at the August term, 1904, of said court, defendant was put upon his trial before the court and jury, found guilty of the offense charged, and his punishment assessed at death. Defendant’s motions for new trial and in arrest having been overruled, he appeals.

After defendant’s arraignment and his plea of not guilty were entered of record, he made application for a change of venue of said cause on account of the prejudice of the judge of the St. Francois Circuit Court against him. The application was sustained, and Hon. Samuel Davis, judge of the Fifteenth circuit, was called in by the judge of the St. Francois Circuit Court to try the case. After a panel of forty men had been qualified to sit as jurors upon the trial of the cause, the court discharged them all on account of alleged misconduct of which he became satisfied. At the same term, however, another panel of forty qualified jurors were summoned, from which twelve were selected to act as jurors upon the trial of the case, which was then entered upon. The result was a mistrial. Defendant was again put upon his trial at the August term, 1904, of said court and, as before stated, found guilty of murder in the first degree as charged in the indictment.

¡ The homicide was committed at Farmington, in a saloon of which Bentley and Ryan were proprietors, about ten o’clock on Saturday evening, November, 14, 1903. Until a short time prior to the shooting, deceased had been employed in said saloon. Defendant, at the time of the difficulty, was the proprietor of another saloon in said town. A few minutes before the shooting occurred, deceased came into the saloon with a pitcher of water which he set down behind the bar. The saloon faced south, and the bar, which was twenty feet long, was on the east side. At the end of the bar was an ice. chest, and behind that was the side or east door. After the deceased had put the pitcher of water behind the bar, he walked around the bar and out the front door. After he went out defendant said, ‘ ‘ Harry [meaning deceased] is a good boy, but he has a brother that is a God damn son-of-a-bitch.” After walking a short distance on the street deceased met his uncle Leo Lett, and invited him to go and take a cigar with him. Deceased and his uncle then turned and walked back to the Bentley & Ryan saloon, deceased having been absent about ten minutes.

Leo Lett and deceased walked in the front door, passed by defendant and his friends, and on to the extreme other end of the bar, and deceased called for and purchased a cigar for himself and one for his uncle. Defendant then invited all present to take a drink with him; some did so, but deceased and his uncle declined with thanks, the uncle saying that he had just had a cigar with Harry. Defendant said, “You think you are too damn good to drink with me. ’ ’ Defendant made the remark again, and added thereto, “Harry, you are God damn son-of-a-bitch.” Deceased replied, “I am no more of a son-of-a-bitch than you are.” Defendant then applied a vile epithet to deceased, which is too vulgar to be reproduced, to which deceased retorted, “same to you.” At the time of using these words -defendant stepped up towards deceased, drew his pistol and shot deceased in the neck. Deceased turned and was then facing defendant, with a lighted cigar in his hand, and his left elbow leaning on the bar. The State’s evidence differed as to the position of his right hand, some of the witnesses saying that the cigar was in his right hand, and others saying that his right hand was hanging down by his side. Deceased and defendant were ten or twelve feet apart, and facing each other. Just prior to the firing of the pistol, deceased’s uncle (Leo Lett) stepped up and said to deceased, “Harry, let’s go home, don’t have any trouble.” Some of the witnesses testified that after the shooting, defendant walked out the front door and said, “I don’t allow no man to call me a — ” (repeating the same epithet applied by him to deceased) “without I kill him.” As soon as the shot was fired, deceased fell to the floor, and the bartender and Duke Powell took off his coat and overcoat and placed him on a cot. While examining these coats and while taking off his pants, no weapons of any kind were found on deceased. A physician, Dr. Fleming, was called, who, after making an examination of deceased’s wound in the saloon, had him taken to the Baptist sanitarium, where he died the next day (Sunday) at five p. m. as a result of this gunshot wound.

The defendant’s evidence tended to prove that defendant and deceased were both drinking at Bentley & Ryan’s saloon, and that deceased left the saloon after bringing a pitcher of water, and was gone perhaps half an hour. That George Gordon heard deceased and Leo Lett talking out in front of the saloon, at which time deceased asked Leo if he got it, and Leo replied, “Yes, and a damn good one too.” Deceased then asked his uncle to stand behind him, and they would go in and he would do the rest. That deceased pointed out defendant through the glass window and said, “He is in there, setting them up.” That at that time defendant and several others were standing at the bar near the front end of the saloon. Another witness, Jesse Biggs, who claimed to hear this conversation, said that deceased asked Leo if he got that pistol, to which Leo replied, “Yes, and a damn good one too.” Deceased then said, “There he is in the saloon; he is pretty drunk now, and now will be our time to get him. ’ ’ That deceased and his uncle-walked by the other persons standing at the bar, called for and lighted their cigars. Defendant then told the bartender to give them a drink, but the bartender shook his head. That defendant again invited them to'drink, but Leo Lett declined, saying, “I have just had a cigar with Harry.” That deceased said, "No, God damn you, I am not going to drink with you, you have been acting a God damn fool around here all night.” That Leo Lett tried to slip a pistol into the right hand of deceased at that time, and Arthur Bodell called out, “Look, Pink, [defendant] Lett has got a gun.” Defendant fired one shot, and Leo Lett ran behind the ice chest with a pistol in his right hand. That at the time of the shooting, deceased was standing with a cigar in his left hand, his left arm resting on the bar, and his right hand in his front pants pocket. Defendant’s evidence further showed that prior to this night, deceased and defendant had some trouble over a horse and also over a woman. A number of witnesses testified to threats made by deceased against the life of defendant; some of the threats were communicated to defendant, and others were not. Defendant admitted the shooting, but claimed that he did it in self-defense. He also admitted that just prior to the shooting he used all of the rough language towards deceased as detailed by the State’s witnesses. Defendant testified that he saw the pistol, which Leo Lett tried to hand to deceased, and that he then thought he did hand it to deceased. That after the shooting he saw Leo Lett with the pistol in his hand, as Lett walked away behind the ice chest. Defendant further testified that he heard many of the threats which deceased made against him, which were communicated to him prior to the final difficulty.

In rebuttal, the State’s evidence tended to show that one of defendant’s main witnesses, George Gordon, was not in Farmington on that night, but that he attended a shooting contest at the home of James Field, some twenty miles away, and remained at Mr. Field’s all that afternoon and until the next (Sunday) morning. The State’s evidence further tended to show that it was impossible for defendant’s witnesses, Jesse Biggs, George Gordon and others to have seen what occurred in the saloon, as said witnesses were outside on the sidewalk, and the window curtains were raised, the curtains working from below. The defendant read to the jury the deposition of one Arthur Bodell, which corroborated defendant in many particulars; but Bodell was contradicted by his testimony before the coroner.

Defendant then offered some witnesses who testified that the curtains were raised that night, but not raised till after the shooting, and that the witness Gordon was in Farmington that night.

Then the State introduced a number of witnesses who testified to the bad character and reputation of defendant’s witnesses who had testified to seeing George Gordon in Farmington the night of the shooting. Lydia Jacobs andLinnie Moore, two of defendant’s witnesses, were shown to be of bad moral character.

The court, over the objections and exceptions of defendant, instructed the jury as follows:

“1. The court instructs the jury that if you believe from the evidence in this case that the defendant, O. P. McCarver, at the county of St. Francois, State of Missouri, at any time prior to the 16th day of November, 1903, willfully, deliberately, premeditatedly and with malice aforethought, shot with a pistol and by such shooting wounded Harry Lett, and that within a year and a day thereafter and before the 16th day of November, 1903, said Harry Lett, at the county of St. Francois. aforesaid, died in consequence of such shooting and wounding, you will find the defendant guilty of murder in the first degree.

‘,‘2. If you believe from the evidence that the defendant, O. P. McCarver, in the county of St. Francois, State of Missouri, at any time prior to the 16th day of November, 1903, willfully, premeditatedly, and of his malice aforethought, but not deliberately, shot and wounded Harry Lett, and that within a year and a day thereafter and before the 16th day of November, 1903, the said Harry Lett, at the county of St. Francois aforesaid, died in consequence of said shooting and wounding, then it will be your duty to find' the defendant guilty of murder in the second degree.

“3. The court instructs the jury that, as used in these instructions, the term ‘willfully’ means intentionally; that is, not accidentally. ‘Deliberately’ means in a cool state of the blood, it does not mean brooded over or reflected upon for a week or a day or an hour; but it means a conscious purpose to kill, formed in a cool state of the blood, and not under a violent passion, suddenly aroused by some real or supposed grievance. ‘Premediatedly’ means thought of beforehand for any length of time, however short. ‘Malice,’ in its legal sense, does not mean mere spite or ill will, as ordinarily understood, but means the intentional doing of a wrongful act, that condition of mind which prompts one person to take the life of another without just cause or justification; and it signifies a state of disposition which shows a heart regardless of social duty and fatally bent on mischief. ‘Malice aforethought’ means with malice and premeditation.

“4. You are further instructed that he who willfully, that is, intentionally, uses upon another at some vital point a deadly weapon, must, in the absence of qualifying facts, be presumed to know that the effect is likely to produce death, and knowing this, must be presumed to intend death, which is the probable consequence of such an act, and if such deadly weapon is used without just cause or provocation, he must he presumed to do it wickedly and from a had heart, and if the jury believe from the evidence that the defendant, O. P. McCarver, shot and killed Harry Lett, as charged, and that at the time or before the shot was fired, the defendant had formed in his mind the willful, premeditated and deliberate design or purpose to take the life of the deceased, and that the shot was fired in furtherance of that design or purpose and without any justifiable cause or legal excuse therefor as explained in these instructions, then the jury should find the defendant guilty of murder in the first degree.

“5. Upon the question of self-defense the court instructs the jury that if at the time defendant shot Harry Lett, he, the defendant, had reasonable cause to apprehend a design on the part of Harry Lett to take his life, or to do him some great personal injury, and that there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and that to avert such apprehended danger he shot, and that at the time he shot he had reasonable cause to believe and did believe that it was necessary for him to shoot and kill to protect himself from such apprehended danger, you will acquit the defendant on the ground of self-defense. It is not necessary that the danger should have been actual or real, or that the danger should have been impending and about to fall. All that is necessary is that defendant had cause to believe and did believe this fact. On the other hand, it is not enough that he should have so believed, but he must have had reasonable cause to so believe. Whether or not he had reasonable cause is for you to determine under all the facts and circumstances given in evidence. If you shall believe from the evidence that defendant did not have reasonable cause to so believe, you cannot acquit him on the ground of self-defense, although you may believe from the evidence that the defendant really thought he was in danger.

“6. The court further instructs the jury that, when a person has reasonable grounds to apprehend that some one is about to do him great bodily harm, and there are reasonable grounds for believing the danger imminent and that such design will be acomplished, he may safely act upon appearances, and kill the assailant if that be necessary to avoid the apprehended danger, and the killing will be justifiable, although it may after-wards turn out that the appearances were false, and that there was in fact no design to do him serious injury nor danger that it would be done, and in passing upon the question whether the defendant had reasonable ground for believing that there was imminent danger that the deceased was about to kill him or do him some great bodily harm, the jury should determine the question from the standpoint of the defendant at the time he acted and under his surroundings at that particular instant of time, and the jury must also, in passing upon that question, take into consideration the threats, if any, made by the deceased against the defendant.

“7. The court instructs the jury that they should take into consideration the threats, if any, made by deceased against the defendant. If you believe from the evidence that any threats made by deceased were communicated to defendant prior to the killing, then such threat, or threats, if any, so communicated may be considered by you as explaining the conduct and apprehensions of defendant at the time of the shooting. ■ You may also consider any threats you may believe from the evidence were made by Harry Lett and not communicated to the defendant prior to the killing, for the purpose of explaining the conduct and demeanor of deceased at-the time of the shooting. If the jury believe from the evidence that prior to the shooting said Harry Lett had made threats against the defendant, yet this fact alone did not justify or excuse defendant for shooting deceased, if he did shoot him, and although such threats were communicated to defendant, before he shot said Lett, if at the time of the fatal shot the said Lett made no threats against defendant and made no assault upon defendant, and was making no effort or attempt to carry out such threats, then the same did not justify defendant in shooting deceased, if he did shoot him.

“8. The court instructs the jury that the defendant is presumed to be innocent, and- this presumption attends and protects him at every stage of the case until it is overcome by testimony which proves his guilt beyond a reasonable doubt; and it is not enough in a criminal case to justify a verdict of guilty that there may be strong suspicion or even strong probabilities of the guilt of the defendant, but the law requires proof so clear and satisfactory as to leave no reasonable doubt .of defendant’s guilt.

‘ ‘ 9. The jury are instructed that the indictment in this case is of itself a mere formal accusation or charge against the defendant, and is not of itself any evidence of the guilt of the defendant, and no juror should per,mit himself to be to any extent influenced against the defendant because or on account of the indictment in this case.

“10. Before defendant can be convicted of any offense under the indictment the jury must believe from ..the evidence that the defendant is guilty beyond a reasonable doubt. A reasonable doubt, however, must be a substantial doubt, arising out of a due consideration of all the testimony, and not a mere possibility of defendant’s innocence.

“11. The defendant is a competent witness in his own behalf, and his testimony is to be weighed by the same rules that govern the testimony of other witnesses ; but in weighing his testimony the jury may take into consideration the fact that he is the defendant in the case, and his interest in the result of the trial.

“12. The jury are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony; and you should take into consideration the character of the witnesses, their conduct and appearances on the stand, their interest, if any, in the result of the suit, the motive actuating them in testifying, the witness’s relation to or feeling for or against the defendant, or the deceased, the probability or improbability of the witness’s statements, the opportunity the witness had to observe or be informed as to matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully or otherwise as to matters within the knowledge of such witness, together with all the other facts and circumstances given in evidence. If, upon a consideration of all the evidence, you conclude that any witness has willfully sworn falsely as to any material fact involved in the trial, you may reject or treat as untrue the whole or any part of such witness’s testimony. - By ‘material fact’ is meant any fact which tends to prove or disprove the defendant’s guilt or innocence.”

Then follows another instruction (No. 13), as to the form of the verdict, which it is unnecessary to reproduce.

After the arguments of counsel on both sides to the jnry, the court withdrew instruction No. 7 from the jury and gave in lieu thereof another instruction (No. 7a), which reads as follows:

“7a. All threats which you believe from the evidence were made by either the deceased, Harry Lett, or by Leo Lett against the defendant should be considered by you in arriving at a verdict. Any threats which were communicated to defendant should be considered as explaining the conduct and apprehensions of defendant at the time of the shooting and all threats, whether communicated to the defendant or not, should be considered in passing upon the evidence as to the conduct and demeanor of deceased and Leo Lett at the time of the shooting. Although you may believe from the evidence that prior to the shooting deceased, Harry Lett and Leo Lett made threats against the defendant, yet such threats alone did not justify defendant for shooting Harry Lett, and although such threats were communicated to defendant before the shooting, yet if at the time defendant fired the fatal shot neither Harry nor Leo Lett made any threat or threats against defendant and made no assault upon defendant and were making no effort to carry out such threats, then the same did not justify defendant in 'shooting Harry Lett.”

The defendant again renewed his objection to the instructions as a whole, because they did not properly declare all the law in writing to the jury necessary for their deliberations, which objection was by the court overruled, and defendant excepted.

Thereupon, on the 1st day of September, 1904, the jury returned into the court their verdict and finding, the same- having been written on the body of said instruction No. 13, as to the form of the verdict, as follows: “We, the jury, find the defendant, O. P. McCarver guilty of murder in the first degree. J. D. Webb, foreman.”

The court thereupon orally informed the jury that the verdict so returned by them was not in due form, and that they should return to their room and correct the same, or return another verdict written on another sheet of paper. Said jury again returned to their room, and within a few minutes returned into court the following verdict: “We, the jury, find the defendant, O. P. McCarver, guilty of murder in the first degree. J. D. Webb, foreman.”

To the action of the court, and to the returning of said verdict the defendant objected and excepted at the time. While it was the absolute right of defendant to be tried in the county where the offense is charged to have been committed, such right extended no further; but if it was made to appear to the court in the manner pointed out by the statute (sec. 2576, R. S. 1899) that the minds of the inhabitants of that county were so prejudiced against the defendant that a fair trial could not be had therein, then said case might be removed by the order of the court to the circuit court of another county in the same circuit. [Sec. 2572, R. S. 1899.] The right to a change of venue by defendant being purely statutory, it devolved upon him, in order to avail himself of that right, to bring his case within the provisions of the statute. That the evidence upon the applications were conflicting is indisputable, and under such circumstances, in the absence of proof of some fact indicating an abuse of its discretion, this court will defer to the ruling of the trial court. As was said by Sherwood, J., in speaking for the court in the case of State v. Albright, 144 Mo. l. c. 642, ‘ ‘ The evidence in favor of and against the application was heard by the trial court, and having been determined adversely to granting the change, such ruling will not be disturbed by this court, and should not be unless there had been circumstances of such a nature as indicated an abuse of the discretion lodged in the trial court, something which is not to be found in the present record.” The same rule is announced in State v. Dyer, 139 Mo. 199; State v. Tatlow, 136 Mo. 678; State v. Clevenger, 156 Mo. 190; State v. Burgess, 78 Mo. 234.

"When Judge Davis took the bench, in pursuance of the call of Judge Anthony, to try this case, the defendant by his counsel filed a motion or plea to the jurisdiction based on the ground that judge Davis did not have jurisdiction in any criminal case in the Fifteenth judicial circuit of Missouri, over which he presided, there being a criminal court in said Fifteenth judicial circuit having exclusive jurisdiction in all criminal cases originating in said circuit, or which go there for trial upon change of venue. The contention is that section 2597, Revised Statutes 1899, only conferred upon Judge Anthony, who was disqualified to try the cause, the power to call in, to try the cause, the judge of some other circuit who possessed all the qualifications of a circuit judge under the law, and that as Judge Davis had no authority under the law to try criminal cases in the circuit in which he presides, he possessed no such authority elsewhere, and, therefore, was without’ authority to try this case. That Judge Davis has no authority to try criminal eases in the circuit in which he presides will be conceded, because by section 4, p. 2564, Revised Statutes 1899, jurisdiction is expressly conferred upon the criminal court of that circuit to try all eases that originate therein, and by section 7 of the same act it is provided that all criminal cases removed from any county to any of the counties composing said criminal judicial circuit shall be certified to, tried and determined by said criminal court in the county in which the same may be sent. But it does not necessarily follow that Judge Davis was without authority to try this case. The application for the change of venue under consideration was based upon the ground that the Hon. R. A. Anthony, judge of the circuit court of St. Francois county, was biased and prejudiced against the defendant, and would not afford him a fair trial, and said application conformed to the provisions of section 2594, Revised Statutes 1899. The record discloses that the application was sustained, and an order entered of record, which recites that “the said defendant and prosecuting attorney have failed to agree in writing to elect some attorney-at-law, who possesses all the qualifications of a judge of the circuit court, as special judge in said cause, this cause is set down for trial” on Tuesday, the 2nd day of February, 1904, and Hon. Samuel Davis, judge of the Fifteenth judicial circuit of Missouri, is requested to be present and preside in this court at the trial of said defendant. ” [Sec. 2597, R. S. 1899.] This section of the statutes, under the circumstances stated, makes it the duty of the court granting the change to set the case for trial on some day of the term, or on some day as early as practicable in vacation, and to notify or request the judge of some other circuit to try the cause; and the statute also makes it the duty of the judge so requested to appear and hold the court at the time fixed and vests him with full power and authority during the trial of said cause to perform all the duties of a circuit judge at a regular term of such court. The statute authorizing the calling of a judge of another circuit to preside at the trial of a certain criminal cause pending in another circuit, under the circumstances and conditions therein provided, makes no exception against any judge who may not have jurisdiction of criminal eases in the circuit court in which he presides, because such jurisdiction is conferred, upon a criminal court in that circuit; nor can any such exception be inferred from or read into the statute. Its terms apply to all circuit judges in this State, and the fact that Judge Davis did not have jurisdiction to hear and try criminal cases in the Fifteenth judicial circuit in no way disqualified him from hearing and trying such in another circuit, when requested to do so by the judge presiding therein under the conditions provided by the statute. Suppose that in one county only of the Fifteenth circuit there was a criminal court having exclusive jurisdiction of criminal cases, would it he contended from that fact that Judge Davis would he disqualified from hearing and trying a criminal case in any other circuit when properly requested so to do by the judge of that circuit? Or, suppose Judge Anthony, under the provisions of section 1678, Revised Statutes 1899, had requested Judge Davis to hold the term or part of the term of the St. Francois Circuit Court, and Judge Davis had presided at the trial of defendant, could it be claimed that he was without authority to try the case because he had no authority to hear and try criminal cases in his own circuit? We think not. There is no difference in principle between the two propositions. Judge Samuel Davis has on several occasions, in response to requests made by the judge of the criminal court of Jackson county, presided at the trial of cases in that court. At one of such trials (State v. Taylor. 171 Mo. 465), the defendant was convicted of murder in the first degree, and upon appeal to this court the judgment was affirmed, with directions that the sentence of the law be executed. In addition to Taylor’s case may be mentioned State v. Hudspeth, 159 Mo. 178; State v. Blitz, 171 Mo. 530 ; State v. Nelson, 181 Mo. 340 ; State v. Nelson, 166 Mo. 191, and in none of them was it ever intimated or suggested, so far as the records therein disclpse, that he had no jurisdiction; nor do we think there can be any question as to his jurisdiction to try the case at bar.

It is claimed by defendant that Martin Westover, Abe Elser, N. A. Kinkead and James P. Sigman, who were selected as qualified jurors on the panel of forty, from which twelve were selected to sit as jurors upon the trial of the cause, were not qualified .to sit as such jurors, and that the court erred in allowing them to remain on the panel of forty. The objection against Westover was general, no reason for the objection having been given, and it has been ruled by this court that the objection must be specific. [State v. Taylor, 134 Mo. 109; State v. Evans, 161 Mo. 95; State v. McGinnis, 158 Mo. 105.] The same may be said with respect to the objection to jurors Sigman and Elser. Besides, their examination touching their qualifications as jurors showed them to be clearly qualified, as it appeared that the opinion which each had formed was based upon newspaper reports of the homicide, and both stated that they could try the case fairly. Such opinions did not, under the circumstances, disqualify them as jurors. [State v. Duffy, 124 Mo. 1; State v. Hunt, 141 Mo. 626.] In State v. Duffy, supra, it is said: ‘ ‘ Persons who have formed opinion of the guilt or innocence of one accused of crime, from rumor or newspaper reports, are not for that reason rendered incompetent to sit as jurors on the trial of the case, where they answer upon their voir dire that they can give the defendant a fair and impartial trial.” Nor is a person who states that he has “formed an impression or opinion as to the guilt or innocence of the accused, and that such opinion has been formed either from rumor or newspaper reports, or both, which it would require evidence to remove, an incompetent juror, provided it further appears to the satisfaction of the court that such opinion will readily yield to the evidence in the case, and that such juror, notwithstanding such opinion, will determine the issue upon the evidence adduced on the trial,, free from prejudice or bias. ’ ’ [State v. Walton, 74 Mo. l. c. 275; State v. Cunningham, 100 Mo. 382.] Or that he can, under such circumstances, give the defendant a fair and impartial trial. [State v. Hunt, 141 Mo. 626.] In State v. Brennan, 164 Mo. 487, a juror stated in his vior dire that he had formed an opinion of the guilt or innocence of the defendant from newspaper reports only, and that the burden would be on the defendant to-change this opinion, but further stated that all he knew of the case was what he had gleaned from the newspapers ; that he was entirely free to be governed by the evidence and could render a fair and impartial verdict. The juror was held to be competent. So in State v. Reed, 137 Mo. 125, a juror was held to be competent who stated that he had formed an opinion, from rumor and newspaper accounts, as to the guilt or innocence of the accused, which it would require evidence to remove, and that if such rumor was not contradicted by evidence his opinion thus formed would be bound to have some influence upon him in arriving at a verdict; but that he could give the defendant a fair and impartial trial, and acquit him, unless the evidence warranted a different verdict.

The challenges to these jurors were only general, nothing more than saying “We object to Sigman and Elser,” and simply amounted to the statement of a legal conclusion. It is well settled that challenges for cause must be specifically stated. [State v. Taylor, 134 Mo. 109; People v. Reynolds, 16 Cal. 128; Mann v. Glover, 14 N. J. L. 195; Powers v. Presgroves, 38 Miss. 227; Drake v. State, 20 Atl. 747; 2 Elliott’s Gen. Prac., sec. 530.] “Fairness to the court and to adverse counsel alike demands the grounds of the challenge for cause to be particularly set forth.” [State v. Taylor, supra.]

About the time the jury was selected to try the case, it was discovered that the indictment upon which the defendant was then on trial was lost. It was then shown by the records of said court that an indictment had theretofore been found by a grand jury of St. Francois county, returned into the court and filed in the office of the clerk of the circuit court of said county, charging the defendant with murder in the first degree, in having killed and murdered, at said county, one Harry Lett with a pistol, a certified copy of which said indictment had been furnished by the clerk of said court to the prosecuting attorney of said county and was then in evidence before the court. The trial court then, by an entry of record, after hearing evidence that satisfied the court that the original indictment had been lost or destroyed and that the copy was a true copy of the original indictment, adopted this certified copy of the indictment as the indictment in the case, and then proceeded with the trial. Defendant claims that this was error; that the loss of the indictment could not be supplied in that way, and that supplying the record is not finding the indictment. It was held in State v. Simpson, 67 Mo. 647, that while no power is conferred by statute to supply a lost indictment, such power exists independent of any statute, and authorizes a court in which an indictment has been found by a grand jury of the county, when such indictment has been lost or destroyed, to allow a paper, proved to be a copy, to be filed as for the indictment, provided it appears, either from the record or from the testimony of witnesses, that the indictment was returned into court and filed. The same question was before this court in State v. Burks, 132 Mo. 363, wherein Gantt, P. J., in speaking for the court, said: “A lost indictment, like any other record, may be supplied by the court of whose record it constitutes á part,” citing State v. Simpson, supra, and State v. Smith, 71 Mo. 45. In the case of State v. Walker, 167 Mo. 366, it is held that “where the certificate of the clerk of the court states that the information on which defendant was tried was not ‘the original information filed in this cause, but a copy, as permitted to be restored by the court,’ it must be presumed that the restoration was correctly made. ’ ’ The action of the court in allowing the copy of the lost indictment to be filed as and for the indictment was fully authorized by the previous rulings of this court, and there can be no question as to the power of the trial court in this regard.

Counsel for defendant complain in their brief of alleged improper remarks by thé prosecuting attorney respecting his failure to bring witnesses to impeach the reputation of the defendant. Whatever may have been his statements, they are not preserved in the bill of exceptions, and as such cannot be shown by affidavits, as was attempted to be done in this case, they cannot be considered upon this appeal. The authorities are all one way upon this subject. [State v. Welsor, 117 Mo. 570; State v. Lamb, 141 Mo. 298; State v. Grant, 144 Mo. 56; State v. McAfee, 148 Mo. 370.]

Instructions numbered 5 and 7 are criticised upon the ground, as claimed, that they limited the right of defendant to defend himself against Harry Lett, the deceased, alone, and were erroneous, and that the withdrawal from the jury of instruction numbered 7 and the substitution of instruction numbered 7a, after argument of counsel, did not cure the defect in said instruction numbered 7, for the reason that instruction numbered 7a is predicated solely upon the threats made by Harry Lett against defendant, and not upon the testimony of witnessess as to the conversation before the? appearance of Leo Lett and Harry Lett at the time of the homicide. The only objection made by defendant to the instructions, so far as the record discloses, up to the time they were read to the jury, was as follows: “To the giving of which instructions, and each and every one of them from one to- thirteen inclusive, the defendant, by his counsel, objected for the reason that said instructions, severally and collectively, do not properly declare in writing all the law necessary for the jury in their deliberations.” The record then shows that the court gave instruction numbered 7a, and following immediately thereafter, the record recites: ‘ ‘ And which was read to the jury in lieu of instruction numbered 7, heretofore read to the jury and withdrawn as aforesaid. The defendant again renewed his objections to the instructions as a whole, because they did not properly dedare all of the law in writing to the jury necessary for their deliberations, which objection was by the court overruled, to which action of the court in overruling defendant’s objection to said instructions defendant, by his counsel, then and there objected and saved his exceptions at the time.”

The record further shows that after said instruction numbered 7a had been prepared by the court, and before it was read to the jury, one of defendant’s counsel was, at his own request, permitted to read it, and after doing so, he remarked, “We have no objection; that is the law, only it is hard to read,” thus showing that this instruction was not objected to, but was given by and with defendant’s assent, and he cannot now be heard to criticise it. Defendant’s objections to all other instructions was that they “did not properly declare all of the law, in writing, to the jury necessary for their deliberations.” The only construction which can be placed upon this objection is that the instructions did not cover all the points of law involved in the case, and not that they were in any respect erroneous. We have held that when the instructions of the court are read to the jury, and the defendant desires further instructions, it is his duty, in fairness to the court, to call its attention to any matter of law arising, in the case upon which the court had failed to instruct, and which was deemed necessary by defendant to be placed before the jury in order that they might arrive at a just verdict, and in the event of the failure of the court to so instruct, it becomes the duty of the defendant to except at the time. [State v. Bond, 191 Mo. 555.] But conceding, for the sake of the argument only, that timely objections were made and exceptions saved to instructions numbered 5 and 7a, such instructions, when read together and in connection with each other, as they should be, embraced the right of defendant to defend himself against both Harry and Leo Lett, were exceedingly fair to the dedefendant and beyond criticism, and presented that feature of the case properly to the jury.

We are unable to appreciate the criticism upon instruction numbered 4, to the effect that it instructs the jury that the intentional killing of a human being with a deadly weapon, without any lawful provocation, must be presumed to be murder in the first degree. The instruction does not so state; nor does the case of State v. Silk, 145 Mo. 240, or State v. Fairlamb, 121 Mo. 137, so hold. On the contrary, it is said in Silk’s case that a homicide committed by the use of a deadly weapon, and without deliberation, is murder in the second degree. The same rule was announced in the Pairlamb case. The instruction under consideration, in defining murder in the first degree, tells the jury that in order to convict defendant of that offense, they must first believe that the killing was with deliberation and premeditation. It says, “If the'jury believe from the evidence that the defendant, O. P. McCarver, shot and killed Harry Lett, as charged, and that at the time or before the shot was fired, the defendant had formed in his mind the willful, premeditated and deliberate design or purpose to take the life of the deceased, and that the shot was fired in furtherance of that design or purpose, and without any justifiable cause or legal excuse therefor, as explained in these instructions, then the .jury should find the defendant guilty of murder in the first degree. ’ ’ The instruction is in line with all the authorities as to what it takes to constitute murder in the first degree, and is free from, objection.

No one can read the testimony disclosed by this record without coming to the conclusion that the evidence fully supports the verdict. There is nothing in the record which tends in the least to show that the verdict was the result of prejudice or bias against the defendant. Upon the other hand, the testimony clearly shows that the homicide was deliberate and premeditated, and without the slightest excuse or justification. The instructions are free from objection and were very fair to the defendant. He had, we think, so far as disclosed by the record, a fair and impartial trial, and must now bear the punishment which the law imposes for its transgression.

Finding no reversible error in the record, we can but affirm the judgment, and direct that the sentence pronounced be executed. It is so ordered.

Gantt, J., -concurs; Foco, Jnot sitting.


source: Caselaw Access Project

author: BURGESS, P. J. Gantt, J.,

license: Public Domain

text:
    THE STATE v. CROSSWHITE et al., Appellants.
    Division Two,
    March 29, 1906.
    1. BAIL: In Felony Case: Fixed by Sheriff. A sheriff has no authority to determine and fix the amount of bail to be given by a prisoner for his appearance and answer to an indictment or information charging him with a felony, and a recognizance so taken is void.
    2. -: -: -: Irregularity. The act of a sheriff in taking, without authority, a recognizance in a felony case is not a mere irregularity and does not come within the provisions of section 2800, •Revised Statutes 1899, which provides against the defeating of a recognizance on account of irregularities.
    Appeal from Monroe Circuit Court. — Hon. David II. Eby, Judge.
    Reversed.

      William T. Ragland and Frank W. McAllister for appellants.
    (1)' Bail bonds taken without authority are void.. State v; Fraser, 165 Mo. 242; State v. "Woodward, 159-Mo. 680'; State v. Pratt, 148 Mo. 402; State v. Caldwell, 124 Mo. 509; State v. Watson, 54 Mo. App. 416;: State v. Swope, 72 Mo. 399; State v. Ferguson,"50 Mo. 409; State v. Nelson, 28 Mo. 13; State v. Randolph, 26 Mo. 213; State v. Ramsey, 23 Mo. 327; State v. Walker, 1 Mo. 546; U. S. v. Case, 8 Blatch. (U. S.) 250. (2> The prisoner in this case was charged with a felony, and the sheriff had no authority to fix the amount of bail. The pretended bond is therefore of no validity. Secs. 2543, 2544, 2546, R.- S. 1899; State v. Fraser, 165 Mo. 257; State v. Caldwell, 124 Mo. 509; State v. Randolph, 26 Mo. 213; State v. Nelson, 28 Mo. 13; State-v. Ferguson, 50 Mo. 409.

      Herbert 8. Hadley, Attorney-General, Rush (7. Lake, Assistant Attorney-General, " and James P. Boyd for’ the State.
    (1) The only statute giving to anyone the right to take bail and fix the amount when the warrant is issued upon an information filed in vacation, is section 2484, Revised Statutes 1899:, and that authority is given to the sheriff, and to him only. This section, when read in connection with all of article- 3, can be construed in but one way, that is, to give to the sheriff the right to fix the amount of bail, and to take the same in all cases prosecuted by information when the same is filed in vacation. (2) The defendant was arrested under an information properly drawn, and was legally in the custody of the sheriff at the time the bond was given. Under the.provisions of the statute (sec. 2800, R. S. 1899), the sureties cannot be heard to complain of any technical error in giving the recognizance. State v. Morgan, 124 Mo. 467; State v. Austin, 141 Mo. 481; State v. Abel, 170 Mo. 59; State v. Eyermann, 172 Mo. 294; State v. Epstein, 186 Mo. 88.
   BURGESS, P. J.

— This is an appeal from a judgment for five hundred dollars rendered against the defendants in the circuit court of Monroe county upon a forfeited recognizance. The defendants, W. W. Crosswhite and Matilda J. Crosswhite, appeal.

The proceeding was a scire facias to enforce a recognizance bond executed by J. B. Crosswhite as principal, and the appellants, IV. IV. Crosswhite and Matilda J. Crosswhite, as sureties, before John W. Burton, sheriff of Monroe county, by A. D. Buford, deputy, on the 4th day of May, 1903, in the penal sum of $500, upon condition that “if the said J. B. Crosswhite shall personally appear before the circuit court of Monroe county, Missouri, on the 23d day of May, 1903, and every day of each and every term of said court, before said judge, to which said cause may be continued, • and if he shall not depart thence without- leave of said court; and if he shall pay all sums of money adjudged against him by said court on said information, then the above bond to be null and void, otherwise to remain in full force and virtue in law.”

The information to answer for which said recognizance was filed in vacation, is as follows:

“State of Missouri, County of Monroe, ss.
“State of Missouri, plaintiff, vs. J. B. Crosswhite, defendant.
“In the circuit court of Monroe county, in vacation of the April term, May first, 1903.
“And now at this day comes James P. Boyd, prosecuting attorney of and within and for the county of Monroe and State of Missouri, and informs the court that J. B. Crosswhite, of said county and State,- on the twenty-fifth day of April, A. D. 1903, at and in said county of Monroe and State of Missouri, in and upon the body of one Yiola Whitesides, then and there being a female, unlawfully, feloniously, on purpose and of malice aforethought did make an assault with intent her, the said Yiola Whitesides, then and there unlawfully, on purpose and of malice aforethought forcibly and against her will, feloniously to rape, to ravish and carnally know, against the peace and dignity of the State. James P. Boyd,
“Prosecuting Attorney.
“Yiola Whitesides, being duly sworn, on her oath says that she is over the age of twenty-one years, and that the facts stated in the foregoing information are true. Yiola Whitesides.
“Subscribed and sworn to before me this the first day of May, A. D. 1903. James H. Hill,
“Clerk of the Circuit Court.”

A capias was duly issued upon said information, directed to the sheriff of Monroe county, and made returnable on the 23d day of May, 1903. Said capias was served upon defendant J. B. Crosswhite, at said county, on the 2d day of May, 1903, by J. W. Burton, sheriff, by J. A. Betha, deputy. At the same time said J. B. Crosswhite entered into a recognizance, as principal, with W. W. Crosswhite and Matilda J. Cross-white as his sureties, in the penal sum of five hundred dollars, for his appearance before the judge of the circuit court of said county on the 23d day of May, 1903, and every day of each and every term of said court, before said judge, to which said cause may be continued ; and if he shall not depart thence without leave of said court, then said recognizance to be void, otherwise to remain in full force and effect.

Afterwards, on the 23d day of May, 1903, the cause was called for trial, and the said defendant, J. B. Cross-white, being three times called to come into court and answer said information, failed and neglected to do so, and said sureties, W. W. Crosswhite and Matilda J. CrosswMte, were three times solemnly called to produce the body of defendant J. B. Crosswhite, but made default, and therefore a forfeiture of the recognizance was adjudged and entered of record, and a scire facias directed to issue against said W. W. Crosswhite and Matilda J. Crosswhite to show cause, if any, why judgment of forfeiture should not be rendered against them, returnable to the next term of said court, and at the same time it was ordered that a capias issue against said J. B. Crosswhite.

Afterwards, on the 23d day of May, 1903, a scire facias, under the hand and seal of the clerk of said court, was issued and executed on said W. W. Cross-white and Matilda J. Crosswhite, by the sheriff of said county, on the 22d day of June, 1903, which said scire facias is as follows:

“State of Missouri, plaintiff, vs. J. B. Crosswhite, W. W. Crosswhite and Matilda J. Crosswhite, defendants.
“In the Circuit Court of Monroe County, August term, 1903.
‘ ‘ The State of Missouri to the Sheriff of said County r
“Whereas on the 4th day of May, A. D. 1903, the said J. B. Crosswhite, as principal, and the said W. W. Crosswhite and Matilda J. Crosswhite, as securities, did enter into a recognizance by the condition of which each were jointly and severally held and bound to the State of Missouri in the sum of five hundred ($500) dollars, for the payment of which, well and truly to be made, they bound themselves, their heirs, administrators and assigns firmly by said presents, which said recognizance and bond was in letters and figures as follows, to-wit: Know all men by these presents that we,’ John B. CrosswMte, as principal, and W. W. Cross-white and Matilda J. Crosswhite, as securities, are jointly and severally held and bound to the State of Missouri in the sum of five hundred dollars each, for the payment of which, well and truly to be made, we bind ourselves, our heirs, administrators and assigns firmly by these presents. Signed and sealed this 4th day of May, 1903. The condition of the above bond is as follows, to-wit: If the above-bound J. B. Cross-white shall appear in proper person before the circuit court within and for the county of Monroe, in the State of Missouri, at the courthouse in the city of Paris, on the 23d day of May, 1903-, and then and there before the judge of said court answer to an information preferred against him by James P. Boyd, prosecuting attorney of the county of Monroe and State of Missouri, charging that he, the said J. B. Crosswhite, of said county and State, on the 25th day of April, A. D. 1903, at and in said county of Monroe and State of Missouri, in and upon the body of one Yiola Whitesides, then and there being a female, unlawfully, feloniously, on purpose and of malice aforethought, did make an assault with the intent her, the said Yiola Whitesides, then and there unlawfully, on purpose and of malice aforethought, forcibly and against her will, feloniously to rape, forcibly ravish and carnally know, against the peace and dignity of the State. Whereof he stands charged (by information as aforesaid), and if he shall in proper person appear on the 23d day of May, 1903, and on each and every day of each and every term of said court before said judge, to which said cause may be continued, and if he shall not depart thence without leave of said court, and if he shall pay all sums of money adjudged against him by said court on said information, then the above bond to be null and void, otherwise to remain in full force and virtue in law. Signed, sealed and acknowledged before me this 4th day of May, 1903. “J. B. Crósswhite, (Seal.)
“W. W. Crosswhite, (Seal.)
“Matilda J. Crosswhite, (Seal.)
“John W. Burton,
“Sheriff of Monroe county. Missouri.
“By A. D. Buford, Deputy.
“ State of Missouri, County of Monroe, ss.
“I, John W. Burton, sheriff of Monroe county, Missouri, hereby certify that I have taken and approved the foregoing recognizance this 4th day of May, 1903.
“ John W. Burton, Sheriff.
“By A. D. Buford, Deputy.”

'Defendants demurred to this scire facias, but the •demurrer was overruled, and defendants W. W. and Matilda J. Crosswhite filed their joint answer to the scire facias, which answer, leaving off the formal parts, is as follows:

“Now at this day come defendants W. W. Cross-white and Matilda J. Crosswhite and for their answer to the scire facias issued and served in this cause and for cause why judgment should not be rendered against ■them in this proceeding, state as follows:
“1. Defendants deny that they entered into, executed or signed, sealed, and acknowledged any bond, recognizance or other obligation by which or-by the condition of which they either jointly or severally became or are held, bound or indebted to the State of Missouri in the sum. of five hundred dollars or any sum of money whatever, and they deny that they, or either of them, jointly or severally, are held, bound or indebted to the State of Missouri in any sum whatever.
“2. Defendants deny that there is any record of this court showing judgment conditionally or otherwise .against either of them, either jointly or severally, and •deny that there is any legal judgment of this court forfeiting the pretended recognizance set forth in the scire facias in this cause, and deny that this court had any right to take or enter any such judgment of forfeiture and allege that said pretended scire facias was improperly and illegally and without lawful authority issued in this cause and is void and of no effect.
‘ ‘ 3. Defendants admit that they signed their names to a paper writing, a copy of the contents of which is set forth in the scire facias, issued in this cause as the recognizance on which this proceeding is based as sureties for one John B. Crosswhite, but defendants allege and state that said pretended recognizance is void, unlawful and of no force or effect and does not bind or obligate these defendants. Defendants state that when they signed their names to said pretended recognizance one John B. Crosswhite, who is described in said pretended recognizance as the principal therein, was in the custody of the sheriff of Monroe county, Missouri, or his deputy, under a pretended warrant issued from the office of and by the clerk of the circuit court of Monroe county, Missouri, on the first day of May, A. D. 1903, pretended to be upon an information filed with and in the office of said clerk by James P. Boyd, Esq., prosecuting attorney of Monroe county, Missouri, on the said first day of May, A. D. 1903, wherein the said John B. Crosswhite was alleged to be charged with an offense, to-wit: That he did on the 25th day of April, A. D. 1903, at and in the said county of Monroe, and State of Missouri, in and upon the body of one Viola Whitesides, then and there being a female, unlawfully, feloniously, on purpose and of malice aforethought, did make an assault with intent her the said Viol a Whitesides then and there unlawfully, on purpose and of malice aforethought, forcibly and against her will, feloniously to rape, forcibly ravish and carnally know, which offense is a felony and punishable by imprisonment in the penitentiary; that said pretended warrant was made returnable on the 23d day of May, A. D. 1903, commanding the said sheriff to arrest said John B. Crosswhite and have him before the circuit court of Monroe county*, Missouri, on said 23d day of May, A. D. 1903, and to return said warrant at said time. Defendants allege and state that said 23d day of May, A. D. 1903, was not the first day of the next regular term of said circuit court of Monroe county, Missouri, after the issue of said pretended warrant; that the next regular term of the said circuit court was, and is, fixed by law to be begun and holden on the fourth Monday in August, A. D. 1903, and the first day thereof is fixed by law for the 24th day of August, A. D. 1903.
“Defendants allege and say .that said pretended warrant was illegal, unlawful and void and did not empower the said sheriff to arrest the said John B. Cross-white or admit him to bail nor to take said pretended recognizance; that said pretended warrant was issued without any lawful authority by said clerk to issue the. same and is void and of no effect.
“4. Defendants further allege and state that the charge set forth in said pretended warrant, and in said information against said John B. Crosswhite, was a felony as herein set forth, punishable by imprisonment in the penitentiary, and that neither the circuit court of Monroe county, Missouri, nor the Honorable David H. Eby, the judge thereof, had, or did fix the amount or sum in which bail would or should be required of said John B. Crosswhite, nor had or did either said court or the judge thereof make any order authorizing said sheriff to fix the amount of said bail or to take said pretended recognizance, or to admit said John B. Cross-white to bail in any sum; that James H. Hill, the clerk of said circuit court of Monroe county, Missouri, had not nor did not fix the amount of said bail nor endorse the same on the pretended warrant, and that the said sheriff of Monroe county, Missouri, was wholly without authority to fix the amount of said bail or to admit said John B. Crosswhite to bail or to take and certify said pretended recognizance, and the same is unlawful, void and of no effect.
“5. Defendants further allege and state that on the 23d day of April, A. D. 1903, the circuit court of Monroe county, Missouri, was in session at the courthouse, in the city of Paris, Monroe county, Missouri, the sanae being during the regular April term, A. D. 1903, of said court, and that on said day said court adjourned said term to the 23d day of May, A. D. 1903; that said court was not actually in session on either the second or fourth days of May, A. D. 1903; that on the said second day of May, A. D. 1903, the sheriff of Monroe county, Missouri, arrested said John B. Crosswhite and took him into custody under said pretended warrant aforesaid, and that on said fourth day of May, A. D. 1903, said sheriff took, and defendants signed their names to said pretended recognizance; that said pretended recognizance by its terms and conditions required the said John B. Crosswhite to appear in said circuit court and before the judge thereof, on the 23d day of May, A. D. 1903; that as hereinbefore alleged and stated said 23d day of May, A. D. 1903, was not the first day of the next regular term of said circuit court, but that the 24th day of August, A. D. 1903, was the first day of the next regular term of said, court, and that said sheriff was wholly without- authority to take bail requiring said John B. Cross white to appear in said court on said 23d day of May, A. D. 1903, and that said recognizance is void, unlawful, of no effect and taken by said sheriff without any authority or right to take the same.
‘ ‘ 6. Defendants further allege and state that said pretended recognizance required and was conditioned for the appearance of the said John B. Crosswhite not alone on the said 23d day of May, A. D. 1903, but on each and every day of each and every term of said court, before said judge, to which said cause may be continued, and if he shall not depart thence without leave of said court, and if he shall pay all sums of money adjudged against him by said court on said information; defendants allege and state that said sheriff was wholly without any authority to require said conditions; that the same are unlawful, and that said recognizance is unlawful, void and of no effect.
“7. Defendants further state and allege that said pretended recognizance was not certified by the sheriff of Monroe county, Missouri, as required by law. ’ ’
The answer was duly sworn to by the defendants named therein.
On September 10, 1903, at the August term, 1903, of said court, the cause was submitted upon the pleadings and evidence, upon the agreement of both parties to furnish the court with a written argument and brief on or before September 19,1903, and it was ordered by the court that an alias capias issue to the sheriff of Monroe county, Missouri, for defendant J. B. Cross-white, the amount of bond being fixed at $500; -
Thereafter, on September 26, 1903, the submission ■of the cause was set aside, and an alias scire facias' ordered issued for defendant, J. B. Crosswhite, returnable to the next term of said court.
At the December- term, 1903, of said_ court, the ■cause was submitted upon the same pleadings and evidence, and at the same term, on January 27,1904, judgment was rendered against all of the defendants and in favor of the State for '$500; the penalty of the recognizance, together with costs, and ordered that the State have execution therefor.
After unsuccessful motions for new trial and in arrest, defendants W. ~W. Crosswhite and Matilda J. ■Crosswhite appeal.
Defendants contend that, as the defendant in the information is charged with a felony, the sheriff was without authority to fix the amount of bail, and the recognizance is, therefore, void.
The only sections of the statute bearing on this ■question are as follows;
“ Sec. 2544. If the defendant is not arrested or in custody during the term at which an indictment for felony is returned, the court must fix the amount of bail required of the defendant, and the clerk must indorse the amount on the warrant; but if-no order fixingjTthe amount of bail has been made, the sheriff may present the warrant to the judge of the court, and such judge may thereupon indorse the amount of bail required; or if the judge is not in the county, the clerk may fix the amount of bail.
“Sec. 2545. All recognizances taken in a court of record in term shall be entered of record, and all recognizances required or authorized to be taken in vacation in any criminal case, or proceeding of a criminal nature, shall he in writing, and signed by the parties to be bound thereby.
“Sec. 2546. When any sheriff or other officer shall arrest a party by virtue of a warrant upon an indictment, or shall have a person in custody under a warrant of commitment on account of failing to find bail, and the amount of bail required is specified on the warrant, or if the case is a misdemeanor, such officer may take bail, which in no case shall be less than one hundred dollars, and discharge the person so held from actual cutsody. ’ ’
It will be observed that the only authority a sheriff has to determine and fix the amount of bail to be given by a prisoner for his appearance and answer to an indictment or information pending against him is that given in section 2546, and that is in cases of misdemeanors only, and then in a sum of not less than one hundred dollars. Hence, the sheriff’s acts fixing the amount of the recognizance and approving the same were without authority, and void.
In State v. Caldwell, 124 Mo. l. c. 512, it is said: “Now, it is abundantly settled that a bond or recognizance taken in a criminal cause, before an unauthorized person, has no savor of validity about it. ’ ’ [State v. Randolph, 26 Mo. 213; State v. Nelson, 28 Mo. 13; State v. Ferguson, 50 Mo. 409.]
In State v. Woodward, 159 Mo. 680, the defendant was indicted at the April term, 1897, of the Mississippi Circuit Court, for embezzlement. On July 26, 1897, capias was issued for him, upon which the clerk of the court made the following indorsement: “The court failing’ to fix the amount of the bond during the sitting of the court, I, as clerk of said court, fix the bond at $350. I. T. Clarkson, circuit clerk.” Woodward was arrested and admitted to bail by the sheriff in bond for $350, with P. A. Lynn, Jennie Woodward and R. F. Davidson as sureties. Thereafter, at the April term, 1900, of said court, judgment was rendered against Lynn and Davidson for the amount of the bond. On appeal, this court held there was no authority in the clerk to fix the amount of bail. The statute then in force was section 4124, Revised Statutes 1889 (section 2544, Revised Statutes 1899). It is as follows: “If the defendant is not arrested or in custody during the term at which an indictment for felony is returned, the court must fix the amount of bail required of the defendant, and the clerk must indorse the amount on the warrant; but if no order fixing the amount of bail has been made, the sheriff may present the warrant to the judge of the court, and such judge may thereupon indorse the amount of bail required; or if the judge is not in the county, the clerk may fix the amount of bail.”

Gantt, J.,

speaking for the court, said: “It appears affirmatively that the court did not fix the amount of the bond, and for this reason the clerk certifies he fixed it, but the statute only authorized the clerk to assume this authority when ‘the judge is not in the county,’ and there is ho evidence that the judge was absent from the county when the clerk fixed the bail and indorsed it on the capias. It was then an unauthorized act and the sheriff had no authority to take it. [State v. Pratt, 148 Mo. 402.]” To the same effect is State v. Eyermann, 172 Mo. 294.

In speaking of the absence of authority in a sheriff to fix the amount of bail and take bond for the appearance of a prisoner under arrest upon a capias issued upon an indictment or information, this court, in the case of State ex rel. v. Fraser, 165 Mo. l. c. 258, said: “It is too plain for argument that this section provides but a single instance in which the sheriff has the authority to fix the amount of bail, and that is, in case of misdemeanor, and then in a sum of not less than one hundred dollars; in case of felony bond, the amount of the bond must be the amount indorsed and specified on the warrant of arrest or commitment. And, as the sheriff had no authority to take the bonds in question, they are of no validity. ’ ’

The State, however, contends that under the provisions of section 2800, Revised Statutes 1899, the sureties cannot be heard to complain of any technical error in giving the recognizance. That section is as follows:

“No proceeding upon a recognizance shall be defeated, nor shall judgment thereon be prevented or arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the justice or clerk to note or record the default of any principal or surety at the time or term when such default shall happen, or of any other irregularity, so that it be made to appear from the whole record or proceeding that the defendant was legally in custody, charged with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate at a term or time specified for trial. ”

It is plain from the language used in that provision of the statute that it only applies to irregularities of form, omission of recital, condition of undertaking therein, or neglect of the justice or clerk to note of record the default of any principal or surety at the time or term when such default shall happen, etc. The fixing of the amount of bail and the taking of a bond by some person not authorized to do so, as in this case, is not among the irregularities enumerated in said section, nor indeed could such be regarded as merely an irregularity. The bond would have been just as binding if taken by some private person, and it will not be contended that such a bond would have any validity whatever.

“ The line must be drawn between mere irregularities in a recognizance taken by a competent officer, and a paper like this prescribed by one having no power to fix the amount of bail. The former will be sustained, but the latter must be held nugatory and.of no binding force on the defendants who are sureties only and bound by the strict legal effect of the instrument. ’ * [State v. Woodward, supra.]

The judgment is reversed and the sureties discharged from all liability on said so-called recognizance bond.

The conclusion reached renders it unnecessary to pass upon other questions presented by counsel in the case.

All concur.


author: MARSHALL, J.

text:
    CATHERINE E. CROWL v. JOSEPH F. CROWL, Appellant.
    Division One,
    March 30, 1906.
    1. EJECTMENT: Res Adjudicata. One action of ejectment does not bar another in ejectment between the same parties, in respect to the same title and the same tract of land. So that the trial court should strike out from defendant’s answer a plea that, in a former suit in ejectment, by the same plaintiff, for the same tract of land, against the same defendant, judgment was rendered for defendant, and the judgment being unappealed from became res adjudicata of the matters in controversy.
    2. -: -: Ending Litigation. In order to put a stop to repeated actions of ejectment, defendant may resort to a bill of peace, or set up an equitable defense with a prayer for affirmative relief in his answer in ejectment.
    3. -: Limitations: Possession: Must be Adverse. Mere possession does not create title by limitation, however long continued. To have such an effect, the possession must be open, notorious, continuous and adverse, under claim of ownership or color of title. So that a showing by plaintiff that defendant had been in possession of the premises for at least twenty years prior to the institution of the suit in ejectment, without any showing that it was adverse, does not authorize a judgment to the effect that plaintiff’s claim is barred by limitation.
    4. -: By Widow: Election. The wife of the owner of land, who died without issue, having elected in proper time and manner to take one-half of his estate in lieu of dower, may maintain a suit in ejectment for such half interest in the land against her deceased husband’s heirs in possession.
    Appeal from Jasper Circuit Court. — Ho». Jos, D. Perkins, Judge.
    Affirmed.

      B. J. Tucker and Cole, Burnett $ Moore for appellant.
    (1) Defendant is not here contending that the former judgment had any further effect than to settle the question of title as between plaintiff and defendant as it existed at the time of that litigation. Defendant concedes that, notwithstanding the adjudication set out in the answer, plaintiff would have been entitled on the trial to show any legal title subsequently acquired, or any right to the possession that had accrued to her. As a party plaintiff in the first action (the action in ejectment to try the title) plaintiff was entitled to have, and it was the duty of the court to award, judgment for such interest, if any, plaintiff had to the land in controversy. R. S. 1899, sec. 3062. The order in the partition suit directed to plaintiff to bring action to try title to the premises in controversy, set forth in the part of defendant’s answer which was struck out by the court on plaintiff’s motion, was the same kind of order as the order by which the courts of Missouri respond in an action under the statute to quiet title, to-wit, an order to bring an action to try the title. R. S. 1899, sec. 647. Concerning such proceeding it has been held: The very object of the case, as its name.imports, is to quiet title. The mode accomplishing that object is to require the defendant to bring (and prosecute to a finish) a suit to test his claim (if he makes a claim), or to put a quietus on his pretension thereafter of any such claim of title. The ultimate design of the proceeding is to have the plaintiff’s title settled, one way or the other, as to any present claim, whether legal or equitable, of the defendant. It appears quite evident that, on principle, the proceeding involves title, inasmuch as the judgment sought has so direct a bearing on the rights of the parties to the land itself, from the time the judgment is pronounced. Northcutt v. Eager, 132 Mo. 272. Again it is held: “It is well established in this .State that where one is in the possession of land claiming it adversely against all others, one out of possession cannot maintain a suit against him for partition without first establishing his right in an action of ejectment, but after having done so he may maintain his action for partition against the person or persons in possession. Lambert v. Blnmentbal, 26 Mo. 471; Snell v% Harris on, 131'Mo. 495; Rozier v. Griffith, 31 Mo. 171; Shaw v. Gregoire, 41 Mo. 407; Wommack v. Whitmore, 58 Mo. 448; Hntson v. Hntson, 139 Mo. 229. When the rights of the parties suing in partition have thus been established by judgment in ejectment, such judgment is conclusive as long as it remains in force and effect, between the parties thereto, and their privies ; otherwise, resort to ejectment by the party claiming an interest in the land before bringing suit in partition would be of no avail. Therefore, the parties to that judgment nor their privies could go back of it, for the purpose of showing that they hold the title legal or equitable to the lands. Only those, however, who were parties to the ejectment suit and their privies are bound by it.” Estes v. Nell, 140 Mo. 650. (2) The peremptory instruction requested by defendant should have been given and it was error for the court to refuse it, for the reason that the evidence showed plaintiff was not entitled to the possession of any part of the premises in controversy; that she had mistaken her remedy, which, if any she had, was an action for the assignment of her dower and not ejectment. The action for the assignment or set-off of the widow’s dower and the action of ejectment are distinct and independent actions provided by the statute, each for its appropriate, special and specific purpose. The trial court took the view that the property in controversy being land, descended, on the death of Mordekiah Crowl, to his heirs and that the plaintiff, on her election, took as an heir. This was error as to the law. By election the widow takes as a doweress and not by descent. Newton v. Newton, 162 Mo. 186; Van Arb v. Thomas, 163 Mo". 42. Defendant, under the evidence, had held possession of the premises in controversy for more than twenty years; plaintiff’s place of residence was in the State of Illinois with her husband. Plaintiff cannot maintain ejectment for unassigned dower not connected with the mansion house. Sell v. McAnaw, 138' Mo. 273; Hunt v. Searcy, 167 Mo. 165.

      Thurman, Wray & Timmonds for respondent.
    (1) A judgment in ejectment is no bar to any number of suits between the same parties to the same tract of land. Sutton v. Lamerón, 100' Mo. 141; Spencer v. O’Neill, 100 Mo. 49; Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493; Swope v. Weller, 119 Mo. 556; Callahan v. Davis, 125 Mo. 27. (a) -The only matter that may become res adjudicata in an ejectment suit is the matter involved in an equitable defense interposed by defendant. St. Louis v. Lumber Co., 98 Mo. 613; Bierman v. Crecelius, 135 Mo. 386. (b) There is no power or authority in the circuit court to require the plaintiff in a partition suit to bring an action in ejectment, and, when such order is made, it does not have the effect of an order to “try title,” under section 645, Revised Statutes 1899, for the reason that a plaintiff out of possession cannot require anyone to bring suit to try the title. The right to require one claiming an interest in the land to bring suit to try the title is confined to*a person in possession. (2) ■ On the death of Mordekiah Orowl, his widow, the plaintiff, elected to take one-half of the real estate of which her husband died seized. This vested in her a title in fee simple in and to one-half of all the real estate of which her husband died seized, subject only to the payment of debts. Sec. 2939, R. S. 1899. (a) This section expressly provides that the widow shall be entitled to one-half of the real and personal estate, belonging to her husband at the time of his death, absolutely, and it is wholly immaterial, in determining the character of the estate, whether it be called dower or not. By the law it becomes absolutely the property of the widow, and if it becomes absolutely the property of the widow, she is certainly entitled to the possession of it. The only contingency that will divest her of her absolute right to the property is that it may be taken to pay debts of the deceased husband. She receives the absolute title, subject to the payment of the husband’s debts, (b) It is suggested by appellant that the existence of debts must be implied from the deed of election in evidence and the fact that there was an administration. This implication does not follow. She had a right to have an administration for the purpose of filing her deed of election. She could not file it without. But, if appellant was right, and the fact of the election and granting letters of administration did imply an indebtedness on the part of the husband, there is not the slightest evidence that the personal estate is not sufficient for that purpose. The administrator has nothing to do with the real estate of the deceased unless the same is ordered into his hands for the purpose of renting to pay debts, or unless he should be required to sell the same in the manner provided by law to pay the debts. Sec. 130, R. S. 1899. (3) Ejectment is the remedy provided by law for the recovery of real estate in all cases where a party is legally entitled to its possession. Secs. 3052, 3060, R. S. 1899; Alexander v. Campbell, 74 Mo. 142; Alcorn v. Railroad, 108 Mo. 92. (4) Adverse possession, which will start the Statute of Limitations to running against the owner of the legal title, must be an actual possession under claim of right or title with an intention to oust the owner and possess for himself. Ivy v. Yancey, 129 Mo. 508; Baber v. Henderson, 156 Mo. 566; Sell v. McAnaw, 158 Mo. 471; Herbst v. Merrifield, 133 Mo. 271; Bradley v. "West, 60 Mo. 33. (5) The statute does not run against the wife’s right of dower. This is the recognized rule in Missouri. Bradley v. Railroad, 91 Mo. 493; Smith v. Patterson, 95 Mo. 525; Johns v. Fenton, 88 Mo. 64; Osborn v. Weldon, 146 Mo. 185.
   MARSHALL, J.

— This is an action in ejectment for the southeast quarter of section 29, township 31, range 32, in Barton county, Missouri. The petition is in the usual form. The answer is a general denial, coupled with a special plea, that on the 23d of February, 1900, the plaintiff and others instituted an action against the defendant for the partition of the land in controversy; that the defendant claimed to be the absolute owner of the land; that thereupon the circuit court ordered the plaintiff in the partition suit to institute a suit in ejectment against the defendant, to try the title to the land, and further ordered that the partition suit should be continued to await the result in the ejectment suit; that in obedience to said order, the plaintiff, on the 15th of October, 1900, commenced an action against the defendant in ejectment; that' said action was tried on the 30th of January, 1901, and resulted in a verdict and judgment for the defendant, which has never been appealed from, set aside or vacated, but is still in full force and effect; that since said judgment, the plaintiff has not acquired any interest or claim in the premises, other than such as was involved in the original ejectment suit. The answer then pleads that the plaintiff ’s right to the premises in controversy was finally adjudicated in the former ejectment suit. On motion of the plaintiff the special plea of the defendant was stricken out, and on the same day the case was tried, and resulted in a verdict for the plaintiff for the possession of an undivided one-half of the north half of the southeast quarter of section 29, township 31, range 32, and for $150 damages, and four dollars a month rents and profits, and judgment was thereupon entered in favor of the plaintiff for the same. After proper steps the defendant appealed.

The case made is this:

Mordekiah Crowl is the common source of title. He died on the 21st of April, 1899, without issue, leaving surviving him his widow, the plaintiff. He lived in Sangamon county, Illinois. The record is silent as to the relationship of the defendant to him, but in the •briefs counsel speak of him as the brother of the deceased. Plaintiff introduced in evidence a patent from the G-overnment of the United States, for 160 acres in the southeast quarter of section 29, township 31, north, of range 32, to Charles A. Davis and Oreen Moore, assignee of Burnham Hill, dated July 1, 1859, and recorded on the 29th of December, 1883; also a warranty deed, dated November 6,1868, from said Davis and said Moore to Levi Oswalt, for the north half of the southeast quarter of said section 29, township 31, range 32, recorded November 27, 1868; also a warranty deed from Levi Oswalt to Mordekiah Crowl, dated November 5, 1881, to the north half of the southeast quarter, aforesaid, recorded December 13, 1881.

The plaintiff then introduced evidence tending to prove that Mordekiah Crowl lived in Sangamon county, Illinois, and died April 21, 1899, without issue, leaving surviving him, his widow, the plaintiff; that letters of administration on his estate were granted by the probate court of Barton county, on February 23, 1900, to B. C. Avery, who qualified as such administrator; that on the 30th of January, 1900, the plaintiff, as such widow, duly elected to take one-half of the real and personal property of the estate, subject to the payment of the debts thereof, which election was filed for record in Barton county, on the the 23d of February, 1900.

The plaintiff then introduced evidence tending to show that the defendant is, and at the time of the institution of the suit, and for twenty years had been, in possession of the premises; and also showed the rental value thereof. The evidence did not tend to prove the character of the possession of the defendant, nor was any attempt made to show that it was adverse to the plaintiff, or her said deceased husband.

This was all the evidence in the case. The defendant asked and the court refused to give an instruction to the jury to find for the defendant, and the defendant stood upon the ruling, introduced no evidence, and now assigns that ruling as one of the alleged errors in the trial. At the request of the plaintiff the court instructed the jury that if they believed from the evidence that the defendant was in possession of the land sued for at the time of the commencement of this action, and at the time plaintiff elected to take one-half of the land, they would find for the plaintiff for an undivided one-half- of the land described in the petition, and would assess her damages at one-half of the value of the rents and profits from the 23d of February, 1899, the date of the alleged ouster, and would also assess the monthly rents and profits of the land. To the giving of which instruction the defendant excepted, and now assigns the same as error.

I.

The first error assigned is the ruling of the trial court in striking out the special plea of the defendant, to the effect that the rights of the plaintiff to the premises had been adjudicated against her in the former ejectment suit, and that since that judgment she had obtained no new or additional rights.

The rule in this State has long been settled that one action in ejectment does not bar another action in ejectment between the same parties, in respect to the same title and the same tract of land.

In Spencer v. O’Neill, 100 Mo. l. c. 58, Sherwood, J., speaking for this court, said: ‘ ‘ Something has been said about the adjudications in that cause being res adjudicaba in this one, but the case of Foster v. Evans, 51 Mo. 40, which upholds that view, has long since been repudiated in this court, and the now prevalent rule asserted that one action of ejectment is no bar to another, though between the same parties, in respect to the same title, and the same tract of land. [Ekey v. Inge, 87 Mo. 493; Avery v. Fitzgerald, 94 Mo. 207]. It is because of this, that it becomes necessary, in order to put a stop to repeated actions of ejectment, to resort to bills of peace. [Primm v. Raboteau, 56 Mo. 407.]”

In Sutton v. Dameron, 100 Mo. l. c. 149, the same learned judge further said: “The well-settled rule of law in this State, notwithstanding an improvident dictum in Foster v. Evans, 51 Mo. 39, to the contrary, is, actions of ejectment, though between the same parties, having the same defenses, concerning the same title and possession, and in all respects similar in their facts, may be maintained ad infinitum, so long as equitable defenses are not interposed and ruled upon, thereby converting the whole proceeding into ah equitable one, and thus making the adjudication binding. [Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493; Avery v. Fitzgerald, 94 Mo. 207; City v. Lumber Co., 98 Mo. 613.] For this cause it is that when two or more ejectments are brought, and decided in favor of the defendant, he,- in order to prevent being further harassed by a litigious adversary, may maintain his bill of peace, and thus put a stop to oppressive litigation. [Primm v. Raboteau, 56 Mo. 407.]”

The doctrine announced in the case just stated, must be now understood in the further light that a mere equitable defense does not convert the whole proceeding into one in equity, but that in order that the case may be converted from one at law to one in equity, there must not only be an equitable- defense, but a prayer for affirmative relief. [Martin v. Turnbaugh, 153 Mo. l. c. 184, and cas. cit.; see, also, Jamison v. Martin, 184 Mo. 422.]

In Swope v. Weller, 119 Mo. l. c. 564, Brace, J., in speaking for this court, said: “It is settled law in this State that one action of ejectment is no bar to another, though between the same parties, in respect to the same title, and the same tract of land. [Citing cases.] . . . Hence, when a defendant is found to have the legal title, and therefore succeeds in an action of ejectment, in order to prevent being further harassed by subsequent actions for the same property under the same title, he must invoke the aid of a court of equity by a bill of peace. ’ ’

In Callahan v. Davis, 125 Mo. l. c. 35, Burgess, J., speaking for this court, said: “It is well settled in this State that one judgment in an action of ejectment is no bar to the prosecution of another suit for the recovery of the same premises. [Citing cases.] The rule is different in regard to other kinds of action, in which one judgment between the same parties, in regard to the same subject-matter of controversy, is a bar to another suit between them, and the pendency of the first suit may be pleaded in abatement to the last one instituted. But as a former judgment of recovery is no bar to a subsequent suit between the same parties, in an action of ejectment, it must necessarily follow that the pendency of another action between the same parties-, for the same purpose, at the same time the last suit was brought, could not be successfully pleaded in abatement of the last suit. [Hall v. Wallace, 25 Ala. 438.] ”

It follows that there was no error in the ruling of the trial court in striking out the special defense in this case.

II.

The next contention of the defendant is that the plaintiff’s claim is barred by limitation.

This contention is based upon the fact that the evidence introduced by the plaintiff showed that the defendant had been in possession of the premises for at least twenty years prior to the institution of this suit.

There is absolutely no evidence in the case even tending to show that the possession of the defendant was in any way hostile to the legal title. Mere possession does not create title by limitation, however long continued. To have such an effect the possession must be open, notorious, continuous and adverse, under claim of ownership or color of title. [Sell v. McAnaw, 158 Mo. l. c. 471, and cas. cit.]

As hereinbefore pointed ont, it seems to be conceded in the briefs that the defendant was a brother of the plaintiff’s deceased husband, and there is nothing to show that he held the possession adversely to his deceased brother at any time. Mordekiah Crowl died in April, 1899, without issue, and leaving the plaintiff, his widow, surviving him; and under sections 2939, 2941, Revised Statutes 1899, the plaintiff, as his widow, was entitled to take one-half of the real and personal estate belonging to the husband, at the time of his death, absolutely, subject to the payment of his debts, or to take one-third part of all the land whereof the husband was .seized of an estate of inheritance at any time during the marriage, and to which she had not relinquished her right of dower, for and during her natural life. In this case the widow elected to take the one-half of the real and personal property, subject to the payment of the debts, and this was the sum of her recovery allowed her in this case. Upon the ease made, therefore, there is no doubt whatever that the plaintiff is entitled to the relief accorded her in the circuit court, and the judgment of that court is affirmed.

All concur.