author: FOX, X

text:
    THE STATE, Appellant, v. ADAMS.
    Division Two,
    January 31, 1906.
    APPEAL BY STATE: Information: Felony. The State is not, in the present condition of the statutes, entitled to an appeal from the ruling of the court sustaining a demurrer .to an information charging a felony, or sustaining a motion to quash. The*, statutes in no case give the State an appeal in prosecutions begun by information.
    Appeal from St. Louis City Circuit Court. — How. Robert M. Foster, Judge.
    Appeal dismissed.

      Herbert 8. Hadley, Attorney-General, John Ketinish, Assistant Attorney-General, G. N. Ficheissen and Grant Gillespie for the State.
    The question to he answed is whether or not, under the circumstances in this case, the State has a right to appeal the prosecution herein by information. Under the decision of the Supreme Court in the cases of State v. Beagles, 174 Mo. 624, and State v. Rozelle, 174 Mo. 632, and cases cited, no appeal can be taken by the State on á judgment sustaining a demurrer to an information, for the reason that section 2709, Revised Statutes 1899, applies to indictments only. It seems, however, that at the time the Beagles and Rozelle cases were decided, the attention of the court was no.t called to the.,amendment of section 2476, Revised Statutes 1899, authorizing the prosecution of felonies and misdemeanor by indictment or information, and the amendment of section-* 2482, Revised Statutes 1899, relating to the proceedings upon information filed in a court of record. The amendments placed prosecutions of felonies by information on the same basis as by indictment, leaving it to the discretion of the circuit or prosecuting attorney as to * whether he would proceed by information or await an indictment preferred by the grand jury.
   FOX, X

— This cause is here upon appeal by the State from a judgment upon a demurrer which was sustained, to the information filed in this cause by the circuit attorney.

On the 15th of March, 1905, the circuit attorney of the city of St. Louis filed in the circuit court of said city, against the defendant, an information, omitting formal parts, as follows:

“Arthur N. Sager, circuit attorney within and for the city of St. Louis (said city of St. Louis being the Eighth Judicial Circuit of the State of Missouri), now here in court on behalf of the State of Missouri, and on his official oath, information makes, that Charles Adams on the thirtieth day of August, one thousand nine hundred and four, at the city of St. Louis aforesaid, unlawfully, feloniously, knowingly and designedly with the intent to cheat and defraud one Annie Coulter, did falsely and fraudulently represent, pretend and state to the said Annie Coulter, that a certain piano known as the Draper piano which he, the said Charles Adams then and there had, was then and there a piano of the value of five hundred dollars, and of the market value of five hundred dollars, and that said Draper piano was a piano of a make, brand and manufacture that theretofore had been and then and there was in the market at a fixed market price of five hundred dollars; and she, the said Annie Coulter, believing the said false pretenses and representations, so made by the said Charles Adams as aforesaid, to be true, and being deceived thereby, was then and there induced by the said false representations and pretenses so made as aforesaid, to purchase said Draper piano from the said Charles Adams, and to pay over and deliver to the said Charles Adams as the purchase price for said Draper piano, one hundred and eighty dollars, lawful money of the United States, and one Lakeside piano of the value of two hundred and thirty dollars; and she, the said Annie Coulter, then and there did pay over and deliver to him, the said Charles Adams, the said one hundred and eighty dollars lawful money of the United States, and said Lakeside piano; and that he, the said Charles Adams, by means of the said pretenses and representations so made to the said Annie Coulter, as aforesaid, unlawfully, feloniously, knowingly and designedly did then and there obtain of and from the said Annie Coulter the said sum of one hundred and eighty dollars lawful money of the United States and the said Lakeside piano, all of the money and property of the said Annie Coulter, and of the value of four hundred and ten dollars, with the intent then and there her, the said Annie Coulter, to cheat and defraud of the same. Whereas, in truth and in fact, the said certain piano known as the Draper piano, which he, the said Charles Adams, then and there had and sold to her, the said Annie Coulter, was not then and there of the value of five hundred dollars, and of the market value of five hundred dollars, and was not then and there a piano of a make, brand and manufacture that theretofore had been and then and there was in the market at a fixed market price of five hundred dollars, as he, the said Charles Adams, then and there well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

To this information counsel for defendant interposed a demurrer, which was sustained by the court July 5,1905. Prom the action of the court in sustaining the demurrer to the information and rendering judgment thereon, discharging the defendant, the State appealed September 11,1905, during the term of the court at which judgment was rendered.

The record, as herein indicated, is now before us for consideration.

OPINION.

The first and most important question involved in the record, as herein indicated, is the right of the State to appeal from the judgment upon the demurrer to the information, which was by the trial court sustained. In the recent cases of State v. Beagles, 174 Mo. 624, and State v. Rozelle, 174 Mo. 632, after a full review of all the authorities, it was held that there was no right of appeal by the State upon a judgment sustaining a motion to quash or demurrer to the information, for the reason that section 2709, Revised Statutes 1899, authorizing an appeal by the State, is applicable alone to judgments sustaining motions to quash or demurrers to indictments.

It is practically conceded by learned counsel representing the State in this cause, that if those cases correctly declare the law, then there is no right of appeal by the State, and it is suggested that the attention of this court at the hearing of those cases, was not directed to the amendments of sections 2476 and 2482, Revised Statutes 1899. This court, in the disposition of the cases referred to, was fully advised of the amendments to which our attention is now specially directed. We are unable to perceive wherein the rule or the reasons for it announced in State v. Clipper, 142 Mo. 474; State v. Carr, 142 Mo. 607; State v. Cornelius, 143 Mo. 179; and State v. Van Brunt, 147 Mo. 20, have in any way been affected or changed by reason of the amendments of the sections referred to. Sections 2708 and 2709, Revised Statutes 1899, which confer the right of appeal upon the State, have in no way been changed. It is expressly provided by section 2708 that the State can exercise the right of appeal ‘ ‘ only in the cases and under the circumstances” provided by section 2709, and that section limits the fight of appeal by the State from judgments holding indictments insufficient upon motion to quash or demurrer or in arrest of judgment. The only substantial change by the amendment of section 247C was to authorize the prosecution of felonies either by 'indictment or information,' and it in tío way alters the application of the rule announced in the cases last cited, which were followed and approved in the Beagles and Rozelle cases. The crucial question is the right of the State to appeal, and it makes no difference whether the appeal is from a judgment sustaining a motion to quash or demurrer, to an information charging a misdemeanor or a felony, the statute authorizing an appeal by the State is applicable alike to both; hence in principle the cases cited are equally applicable to appeals by the State in felony cases-prosecuted by information as they are to informations for misdemeanors. The amendment to section 2482 was simply to make it conform to the amendment of section 2476, which provided that both felonies and misdemeanors could be prosecuted either by indictment or information. The amended section -as now in force, provides: “The trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictment- in said court. ’ ’

It will be observed that prior to the amendment, section 2482 provided that the trial and proceedings upon informations shall be- -governed by the law and practice applicable to trials upon indictments for misdemeanors'. Now, it is manifest, if the amended section, which applies to both information for misdemeanors and felonies, confers the right of appeal upon the State in felony cases, that it logically follows that the same section, prior to its amendment, would have authorized an appeal by the State in cases of misdemeanor.' This section, prior to its amendment, was directly called to the attention of this court in State y. Carr, supra, on rehearing. In that case the right of appeal was denied the State, and on motion for rehearing it was suggested that the decision was in conflict with section -4062, Revised Statutes 1889, which is the same as section 2482 in the revision of 1899, and it was in that case, as it' is in the case at bar, urged that the terms of the statute embraced the right of appeal by the State in cases of this character. It was expressly ruled that such was not the force and effect of that section, and that it had no application to the subject of appeal. In passing on this proposition it was said: “Now as to the second ground suggested, to-wit: That our decision is in conflict with an express statute, to-wit, that section which provides that ‘the trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictment for misdemeanor.'’ [R. S. 1889, sec. 4062.] This section evidently relates to trials and their ordinary incidents when the charge is contained in an information, It does not relate in the remotest manner to the process of appeal or error. The two ways provided and the only two ways provided for that purpose are to be found in the sections heretofore quoted and they are to be found in article 10 of the same chapter (48) under the appropriate title of ‘Appeals and Writs of Errpr. ’ ”

The cases herein cited must be held decisive of the proposition presented by the record in this cause. The conclusion having been reached upon the first proposition, that the State has no right of appeal in this cause, it is unnecessary to discuss the remaining questions presented by the record.

It is therefore ordered, for the reason herein indicated,- that the appeal be and it is hereby dismissed.

All concur.


source: Caselaw Access Project

author: BURGESS, P. J.-

license: Public Domain

text:
    THE STATE v. FINLEY, Appellant.
    Division Two,
    January 31, 1906.
    1. APPEAL: Motion to Quash. A motion to quash an informamation, not being a part of the record proper, must be embodied in the bill of exceptions, Or else the ruling of the trial court thereon cannot be considered on appeal.
    2. -: Information: Sufficiency. An information is a part of the record proper, and if it shows on its face that it is invalid, the question of its sufficiency may for the first time be raised in the appellate court, whether the motion in arrest or the ruling thereon by the trial court was or was not preserved in the bill of exceptions.
    3. -: Instructions: No Exceptions. If no objections were made or exceptions saved at the time objectionable instructions for the State were given, they cannot be considered on appeal. Objections thereto cannot be made for the first time in the motion for a new trial.
    4. -: -: Upon All Law of Case. Unless the bill of exceptions shows that defendant requested the court to instruct upon all the law of the case or in some way called its attention to its failure to do so, an assignment of error in the motion for new trial that the court erred in that respect will not be considered on appeal.
    5. ABORTION: Manslaughter: Information. An information charging manslaughter in the first degree for killing a pregnant woman in an attempt to produce abortion is sufficient if it follows the language of the statute which describes the offense, and is otherwise sufficient in form and substance.
    6. -: Evidence. The evidence in this case is held sufficient to support the verdict of the jury finding defendant guilty of having administered medicines to a young woman for the sole purpose of producing an abortion.
    Appeal from Pulaski Circuit Court. — Ho#. L. B. Wood-side, Judge.
    Affirmed,

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was properly verified, is sufficient in form and substance. It follows the language of the statute, which describes the offense. R. S. 1899, sec. 1823. (2) The instructions fully and fairly presented the law to the jury, and were favorable to defendant. But this court cannot consider them, as no objections were made and no exceptions were saved to the giving of instructions at the time. State v. Bayne, 88 Mo. 604; State v. Burk, 89 Mo. 635. (3) The alleged failure of the trial court to fully instruct upon all the law applicable to the case cannot be considered, because no exceptions were saved at the time to such alleged failure. State v. Albright, 144 Mo. 638; State v. Cantlin, 118 Mo. 111. (4) Defendant’s counsel failed to make any offer of proof where the State’s objections were sustained. By this failure, the Supreme Court cannot investigate the relevance or pertinence of said evidence. State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 54. (5) All of the evidence was admitted without objections, except in two or three instances. In each one of these, defendant simply objected without giving the reasons for his objections. This is not a compliance with our law, which requires that specific reasons for the objections shall be given, and the trial court thereby informed before a ruling is made. State v. Young, 153 Mo. 449. (6) The statement of this case shows that the evidence was ample to justify the verdict of guilty, and the punishment assessed is light. On the subject of the sufficiency of the evidence, this court said: “If there is substantial evidence tending to show defendant’s guilt, the sufficiency of the evidence to support the verdict will not be considered by the appellate court. ’ ’ State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8; State v. Williams, 186 Mo. 128. All of the courts hold that the acts and conduct of the defendant, and the cirqumstances attending the death of the woman, who has had an abortion procured, are of value in determining what connection defendant has had with the commission of the crime. Howard v. People, 185 111. 552. In a case where the evidence for the State was much weaker, and where there was no proof that defendant procured any medicine for deceased, a judgment of conviction was upheld. State v. Crews, 128 N. C. 581. The evidence was sufficient to show that defendant administered the medicine or drug to the deceased, according to the definition of the word “administer” as defined by all the courts. Burris v. State, 84 S. W. 723.
   BURGESS, P. J.-

— On the 12th day of August, 1904, there was filed in the office of the clerk of the circuit court of Pulaski county, by the prosecuting attorney of said county, an information charging the defendant Finley with manslaughter in the first degree, in the killing, at said county, of one Ella Green, by administering to her certain drugs or medicine for the purpose of destroying pregnancy. At the September term, 1904, of said circuit court, the defendant was put upon his .trial, found guilty, and his punishment fixed at six years’ imprisonment in the penitentiary.. Defendant thereafter, in due time, filed motions for new trial and in arrest, both of which were overruled, to which ruling of the court he saved his exceptions, and brings the case to this court by appeal for review.

The State’s evidence tended to show that Ella Green was an unmarried woman, twenty-three years of age, and lived with her brother and stepmother on a farm in said county. Defendant lived at the same place and raised a crop on the same farm the year preceding the death of Ella Green. For three or four days prior to her death Ella Green was complaining, and claimed to her stepmother and others that she had had the measles. Her stepmother was old, very feeble and totally blind, and did not suspect that anything of a different nature was wrong with deceased, as her brother, George, had just recovered from an attack of measles. On the 18th day of May, 1904, George Green and defendant were at w;ork in the field, planting corn, when Mrs. Davis called defendant to come to the house, saying that Ella wanted him. This was about nine o’clock. Defendant went to the house and did not return to the field until after twelve o’clock. Between twelve and one o’clock of the same day defendant was again called by Mrs. Davis, who stated that Ella wanted to see him again. He then went to the house and into the room where the sick girl lay in bed. In a few moments Jackson Davis and William Finley, the latter a brother of defendant, drove up in a wagon and also went into the sick room. William Finley soon left the room and went to the field to get a corn planter, and about the same time Jackson Davis left the room and went to see about his team. In a short time Davis returned and found the door to the girl’s room locked and that defendant was still in the room with her. Davis then went to the field and assisted in bringing the corn planter to the yard. Returning to the house, he found the door to the sick room unlocked. ' On entering the room he discovered that the hearth was wet, although it was dry when he was formerly in the room. Defendant stated to Davis that Ella was getting worse. At two o’clock she died. Defendant then said that the girl was dead and that there would be no more talk; that she had had the measles and had flooded to death. No physician was called to see Ella Green, and although Mrs. Davis was in the room at the time she died, the defendant did. not tell her that Ella was dead, nor did the old lady know it until some others came in and -told her. Defendant started to wash and dress deceased, but one of the men present suggested that they had better get some of the neighbor women to do this, to which defendant objected, saying they would do it. Some women were sent for, and they came in the course of an hour or two. They said deceased had suffered from a miscarriage. The bed clothes were bloody, aud a piece of oil cloth and two aprons were under the body. • One woman testified that “everything around went to show that she had been confined;” another said that when she got there deceased was almost naked, and “was lying in a gore of blood.” These witnesses discovered that the bed clothes were in a tub of water; that the water was red with blood and that there were two pieces of flesh in the tub. It was suggested that a postmortem examination be held, to which defendant objected, and kept on insisting that deceased died as a result of flooding. He wanted deceased’s brother, George Green, to kick the coroner out of the house when he came. Defendant voluntarily said to Mrs. Salsman that evening that he could tell what killed Ella, and that “she had flooded to death on acount of the measles.” Some time prior to the death of deceased the defendant went to •see Dr. Trice and told him that the widow Davis had sent him to get some medicine for Ella Green, and that Ella had become a little irregular in her monthly sickness. He also went to Dr. Reagan and told him practically the same thing, and he procured medicine from both physicians. In March, prior to the death of Ella Green, defendant went to a drugstore in Richland, and told a physician therein, Dr. Harmon, that Ella Green had missed her monthly, and wanted some medicine to make her regular. The druggist rather hesitated about 'furnishing this medicine, remarking that he would not have an abortion produced for a thousand dollars. On May 7th, following, defendant again visited the drugstore and told the druggist that the medicine he had gotten there did not do what she. wanted, and that Ella Green requested him to get some more. The medicine was again furnished defendant, paid for and taken away by him. These, prescriptions contained ergot, cotton root and buchu, and one bottle was found in her room after deceased’s death. The physicians testified that the medicine thus obtained by defendant would produce an abortion. Dr. Oliver testified that he, as coroner, held the post-mortem examination over the body of deceased the day after her death, and found that she had miscarried, but discovered no signs of measles or other skin disease. He gave it as his opinion that she had advanced seven months in pregnancy. Four days after the death of deceased the defendant met one John Johnson and told him that he (defendant) was in hot water, and was being accused of killing Ella Green. About two weeks afterwards he again met Johnson, and said that they had not hung him (defendant) yet, but that if he had justice he' would be hung. A few days before the death, defendant, in speaking of deceased, told Charles Briggs that she had measles, and was broken out all over, but that they would not hurt her. This witness went to the Davis home the day on which the death occurred, saw defendant washing his hands, and asked if Ella was dead, to which defendant replied that she was. When defendant and witness were alone in the room where the deceased lay in an almost nude condition, witness said to defendant, “I thought you told me Ella had the measles; there is no sign of measles here.” Defendant replied, “They have been lying about her; she is not in the family way, is she?” To this witness replied, “No, not now.’’ A few days before, the deceased said to witness, in the presence of defendant, that she had never had measles, but had been where people did have them, and never caught them. After she left, defendant said to witness that he did not think the girl was in the family way.

On the part of the defendant, the evidence showed that he lived on and cultivated a part of the Davis farm, and that he had associated some with the deceased. He admitted procuring the two bottles of medicine from Dr. Harmon, and said that he did so at the request of deceased. Defendant said he brought the medicine to the deceased, but denied administering any of it to her.. He admitted being at the house and in the .room when deceased died, but denied that the door was •ever locked, and said he did not know whether the .hearth was wet or dry. He also admitted talking to ■some of those present about washing and dressing deceased, biit that when some one suggested that he had better have some woman do that, he (defendant) went -for some women in order to have them do so. Dr. Harmon testified that he gave defendant the two prescriptions referred to, for the purpose of making Ella Green regular in her periods; that the medicine would have produced an abortion if it was true that deceased was seven months in pregnancy; that when defendant told him that the.girl had missed her monthly, he asked if there was anything wrong with her, and defendant replied that he had known her ever since she was small and that she was a nice girl; that defendant further said, if he thought the medicine was to be used to produce an abortion, he would not take it to her.

The court instructed the jury, in behalf of the State, as follows:

“1. The court instructs the jury that if you believe and find from the evidence that the defendant, in Pulaski county, Missouri, and on or about the 18th day of May, 1904, did willfully and feloniously administer to one Ella Green a certain medicine, drug and substance for the purpose of destroying the pregnancy of the said Ella Green, and if said medicine was so administered without intending necessary medical or surgical treat1 ment, and without intending any other injury than the destroying of pregnancy, and if the said medicine so administered by defendant to the said Ella Green, did at the time and place aforesaid kill the said Ella Green, you will find the defendant guilty of manslaughter in the first degree and assess his punishment at imprisonment in the State penitentiary for a term not less than five years.
“2. The term ‘willfully,’ as used in these instructions, means intentionally and not by accident. ' The term ‘ feloniously, ’ means wickedly and against the admonition of the law; that is, wickedly and unlawfully.
“3. The defendant is a competent witness in his own behalf and his testimony should be considered by you in making up your verdict, but in determining what weight you will give to his testimony you may consider the fact that he is the defendant and on trial.
“4. You should consider all statements shown to have been made by the defendant with caution, on account of the fact of the liability of the witnesses to forget or misunderstand what was really said or intended.1
“5. The court instructs the jury that the word ‘ administered, ’ as used in these instructions, means the giving to the deceased any drug or substance in any quantity whatever for the purpose of producing an abortion.”

At the instance of defendant the court gave the following instructions:

“1. In order to convict it devolves upon the State to show and prove beyond a reasonable doubt: That on or about the time charged in the information Ella Green was a pregnant woman, and that the defendant in Pulaski county administered to her medicine for the purpose of destroying such pregnancy, and that he administered such medicine without intending any other, injury than the destruction of such pregnancy and without intending any necessary medical treatment; and unless-the State has proven these facts the defendant should be acquitted, and while they may be proven by.-circumstances, yet when the State seeks to establish any fact by circumstances, the circumstances must be consistent in themselves and with each other and wholly inconsistent with the innocence of the accused. And in this case, if the circumstances introduced in evidence can be explained upon any other reasonable theory than that of defendant’s guilt, you should find him not guilty.
“2. The court instructs the jury that the law presumes the defendant to be innocent, and this presumption remains until the State, by evidence, establishes his guilt to your satisfaction and beyond a reasonable doubt; if, therefore, upon a full consideration of all the evidence, you have a reasonable doubt of defendant’s guilt, you should give him the benefit of such doubt and acquit him; but to authorize an acquittal on the ground of doubt alone it should be a reasonable doubt and not a mere possibility of his innocence.”

The defendant is not represented in this court, but in his motion for a new trial he assigned the following as reasons why the verdict should be set aside and a new trial granted:

“1. Because the court admitted illegal testimony on the part of the State and excluded competent and legal testimony on the part of the defendant in the trial of the cause.
“2. Because the court misdirected the jury in giving instructions on the part of the State which did not properly submit the cause to the jury and failing to properly instruct the jury on part of the défendant in material matters of law.
“3. Because the verdict is contrary to the law and the evidence.
“4. Because the court erred in overruling the defendant’s motion to dismiss the cause at the close of State’s testimony.
“5. Because the verdict is not supported by the evidence.
“6. Because the court failed to instruct the jury on all the law in the case.”

In the motion in arrest of judgment a point is made upon the sufficiency of the information, which is claimed to be invalid for the reasons specified in that motion. But neither the motion nor the ruling upon it is embraced in the bill of exceptions, and being matter of exception, could only be preserved that way. In a long line of decisions by tbis court it has been held tbat a motion to quash an indictment, not being part of tbe record proper, must be embodied in a bill of exceptions. [State v. Gee, 79 Mo. 313; State v. Thruston, 83 Mo. 271; State v. Henderson, 109 Mo. 292; State v. Fraker, 137 Mo. 258.] Tbe same rule applies to a motion to quash an information. Tbe action of the court upon tbe motion to qnasb cannot, therefore, be considered by tbis court. [State v. Fraker, supra.] If, however, tbe information, which is a part of tbe record proper, shows upon its face tbat it is invalid, tbat question may be raised for tbe first time in tbis court, but nothing appears upon its face which in any way renders it invalid. It is sufficient in form and substance, and follows, tbe language of tbe statute which describes tbe offense. [Sec. 1823, R. S. 1899.]

Tbe evidence was all admitted without objection, save in two instances, and in these tbe objections were general, no grounds therefor being stated. Unless, therefore, tbe evidence was not admissible for any purpose, no error was committed in admitting it, and we are not prepared to say tbat it was not admissible for tbe purposes for which it was offered.

The instructions fully and fairly presented tbe law of the case to the jury. But even though tbe instructions were objectionable, tbis court could not consider them, no objection having been made or exception saved at tbe time, and tbis could not be done for tbe first time in tbe motion for a new trial. [State v. Bayne, 88 Mo. 604; State v. Burk, 89 Mo. 635, and authorities cited.]

Tbe sixth ground of objection assigned in tbe motion for a new trial is tbe alleged failure of tbe court to instruct tbe jury upon all tbe law of tbe case. But it does not appear from tbe bill of exceptions tbat tbe defendant at any time requested tbe court to instruct upon all tbe law of tbe case, or tbat its attention was called to its failure to do so by tbe defendant, and tbe objection could not be raised for tbe first time in tbe motion for new trial. [State v. Cantlin, 118 Mo. 111; State v. Albright, 144 Mo. 638.]

As to the assertion in the motion for a new trial that the verdict is not supported by the evidence, it is scarcely necessary to say more than that the facts heretofore stated make a strong case against the defendant and point to his connection with and responsibility for the death of Ella Green. That he was responsible for her ruin and disgrace, in the first place, and that then, in order to hide her shame, he procured, by false statements and representations, the medicine which she took for the purpose of procuring an abortion, which abortion resulted in her death, there can be no question. And what, if possible, is worse still, and which shows the defendant to be destitute of the common feelings which stir humanity, is that when the girl called for him and he went into her room, where she was lying in the shadow of death, he locked the door behind him and let her die without notifying her aged stepmother, who was blind, and who did not learn of her daughter’s death until informed of the fact by other persons.

Defendant’s actions at the time of the girl’s death, his protesting against a post-mortem examination* his frequent voluntary assertions that she was not pregnant, but that she had died of the measles, when there was no evidence whatever that she had had such disease, tend strongly to show his consciousness of guilt; and these facts, taken in connection with all the other facts and circumstances adduced in evidence, prove his guilt beyond any question. The judgment should be affirmed. It is so ordered.

All concur.


author: BUBGESS, P. J.

text:
    THE STATE v. LYNAM, Appellant.
    Division Two,
    January 31, 1906.
    APPEAL: No Bill of Exceptions. Where there is no bill of exceptions, the information being in due form and the record proper free from error, the judgment fixing appellant’s punishment at twenty-five years’ imprisonment upon a conviction of murder in the second degree, will be affirmed.
    Appeal from St. Lonis City Circuit Court. — No®. Robert M. Foster, Judge.
    ArriitMED.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was duly verified by the assistant circuit attorney, is sufficient in form and substance. State v. Jones, 134 Mo. 259. (2) The verdict is in the approved form. By it the jury found the defendant guilty of murder in the second degree, and his punishment was assessed at twenty-five years ’ imprisonment in the penitentiary. "Where there is no bill of exceptions, and no error appearing in the record proper, .the judgment should be affirmed. State v. Wright, 186 Mo. 121; State v. Carnell, 186 Mo. 88.
   BUBGESS, P. J.

— On the 10th day of December, 1904, the defendant Jesse Lynam was convicted in the circuit court of the city of St. Louis of murder in the second degree, and his punishment assessed at twenty-five years’imprisonment in the penitentiary, upon an information filed in said court by the assistant circuit attorney of said city charging the defendant with murder, in having shot and killed, at said city, on the 13th day of May, 1904, one John Hiser. Defendant appeals.

The defendant is not represented in this court, nor was any bill of exceptions filed in the case, so that there is nothing before the court for review except the record proper.

The information is in due form and the record free from error. The judgment is affirmed.

All concur.


author: FOX., J.

text:
    THE STATE v. RUFF NICHOLAS, Appellant.
    Division Two,
    January 31, 1906.
    APPEAL: No Bill of Exceptions. Where defendant files no bill of exceptions, there is nothing before the appellate court but the record proper, and if that is free from error, the judgment will be affirmed'.
    Appeal from Pemiscot Circuit Court. — Ho». Henry G. Riley, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   FOX., J.

— This cause is here by appeal from a judgment of the circuit court of Pemiscot county, Missouri, convicting the defendant of murder of the second degree.

There is no hill of exceptions on file in this cause preserving the action of the trial court during the progress of the trial in the lower court; hence, there is nothing before us for review except the record proper.

We have carefully scrutinized the indictment and fiad that it charges the offense in a form that has repeatedly met the approval of this court. The defendant waived formal arraignment and the trial proceeded in proper order. The impaneling of the jury, the return of the verdict finding the defendant guilty of murder of the second degree, assessing his punishment at ten years’ imprisonment in the penitentiary, followed by judgment of sentence, are shown by the record to be regular in every particular; hence, there remains nothing to do except to affirm the judgment, and it is so ordered.

All concur.


author: BURGESS, P. J.

text:
    THE STATE v. McGUIRE, Appellant.
    Division Two,
    January 31, 1906.
    1. BURGLARY: Chicken House: Information: Specifying Goods. An information charging the defendant with burglariously breaking into and entering a chicken house, is sufficient if in the language of the statute. It is not necessary that it describe any property kept in the house or allege that the “goods, wares, merchandise or other valuable thing” kept therein was the subject of larceny.
    2. -: -: Ownership: Proof. It is not necessary that there be direct evidence of the ownership of the chicken house burglariously broken into. If it be shown that the person alleged to be the owner was in the actual possession of the chicken house at the time of the burglary, that,is sufficient proof of ownership.
    3. -: -: Instructions. A series of instructions set out in the statement are held, when taken as a whole, to have presented very fairly to the jury a case of burglariously breaking into a chicken house in the nighttime.
    4. -: -: Sufficiency of Evidence. The evidence in this case is held sufficient to sustain the verdict finding that defendant in the nighttime turned the fastening of the door of a chicken house and forcibly entered the same against the consent of the owner.

      5. -: -: Instructions: Definition of Goods, Etc. It is not necessary to give an instruction defining the words “goods, wares and merchandise and other valuable thing” used in the indictment which follows the language of the statute making it a felony to burglariously in the nighttime break into and en- . ter a chicken house in which are kept or deposited such things.
    6. - -: Evidence: Weight: Sufficiency. An assign- . ment that the verdict is against the weight of the evidence, is an admission that there was some evidence tending to show defendant’s guilt, and hence this court cannot interfere if there was any substantial evidence of his guilt, for the weight of the evidence is for the consideration of the jury. But the fact that defendant sold, a turkey and a number of chickens suiting the 'description of those stolen from the chicken house; that the door had been fastened the night before and, on the next morning was unfastened and the chickens and turkey missing; that tracks led through the snow to and from the chicken house to the public road and there disappeared; that wagon and freshly- ' shod horse tracks led from that point to a livery stable in town; that the owner of the stable had on the previous night hired a buggy to defendant, who stated at the time that he was going'to take a girl to the country after church and took it about nine o’clock, stating he would return at nine the next morning; that he did return at that time, the buggy showing chicken feathers and other chicken litter; that the owner trailed the » .buggy- and horse tracks to that stable, and then went to a poultry yard and found that defendant had at half-past eight o’clock sold a turkey and the chickens there, all point strongly to his guilt, and in the absence of any explanation from him authorized a verdict against him.
    Appeal from Audrain Circuit Court. — Ron. Jas. D. Barnett, judge.
    Affirmed.

      Clarence A. Barnes for appellant.
    (1) The amended information does not state facts sufficient to advise appellant of the offense with which he is charged, and does'not state facts sufficient to constitute a public offense, (a) It fails to allege ownership of the chicken-house to be in anyone at the time of the alleged offense. 1 Bish. New Crim. Proc., secs. 408, 410, 4Í2; State v. Seward, 42 Mo. 206; State v. Broeder, 90 Mo. App. 156. (b) It fails to allege and describe any property kept or deposited in tbe chicken-house answering the description of “goods, wares and merchandise, or other valuable thing,” and thereby enable the court to see that the property was such as in law is the subject of larceny, and the defendant to know what it was he is charged with attempting to steal. 2 Bish. New Crim. Proc., sec. 702; State v. Dawes, 75 Me. 51; State v. Patrick, 79 N. C. 655; State v. Morey, 2 Wis. 494. (c) It fails to allege that the goods, wares and merchandise or other valuable things were “then and there” kept or deposited in the chicken-house. Reg. v. Clarke, 1 Car. & K. 421; 2 Arch., p. 329;. State v. Hardwick, 2 Mo. 226; Jane v. State, 3 Mo. 61; State v. Hagan, 164 Mo. 654. (d) It does not allege that the chicken-house was a building “then and there” the property, etc., thereby omitting to allege ownership of the building to be in any person other than defendant a,t the time of the alleged offense. State v. Jones, 168 Mo. 398; State v. Broeder, 90 .Mo. App. 156. (2) The court erred in giving erroneous instructions for the State, and refusing proper instructions requested by the defendant.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was duly verified by the affidavit of the prosecuting attorney, was sufficient. It is based on the act of the General Assembly, passed and approved on May 31,1899, and follows the language of said statute. State v. Helms, 179 Mo. 280; Laws 1899, 161. (2) No error was committed by the court in refusing defendant’s two instructions. The first one told the jury that chickens and turkeys were not goods, wares, merchandise or other valuable thing contemplated by the statute. This instruction was declared to be erroneous by this court in a similar case. State v. Helms, 179 Mo.280. The seeondrefused instruction told the jury that there was no evidence that defendant was guilty of larceny from the building alleged to have been burglarized. Under the information and under the statute, it was not necessary to prove that defendant was actually guilty of larceny. All that the statute denounces is the breaking into a house (not subject of burglary in the first degree) with the intent to commit larceny. State v. Peebles, 178 Mo. 484. (3) The State’s instructions on the subject of burglary in the second degree, reasonable doubt, burden of proof, weight of evidence and credibility of the witnesses, were proper and have often been approved by this court. State v. Peebles, 178 Mo. 482. The recent possession of stolen property is evidence from which the jury may convict the defendant not only of larceny, but also of burglary. State v. Tandle, 166 Mo. 589. (4) The evidence for the State conclusively showed that defendant was guilty as charg*ed. State v. Warford, 106 Mo. 55.
   BURGESS, P. J.

— On an information presented by the prosecuting attorney within and for Audrain county, charging the defendant with burglary in the second degree, in burglariously breaking into' and entering a chicken-house, being a building belonging to and the property of another, to-wit, one Lee Stewart, with the intent and purpose to steal certain goods, wares and merchandise and other valuable things kept and deposited therein, defendant was, at the January term, 1905, of the circuit court of said county, convicted of the offense charged, and his punishment fixed at three years’ imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest, defendant appeals.

The salient facts are about as follows:

Lee Stewart, whose chicken-house defendant is charged with burglarizing, lived at the time on a farm about eight miles east of Mexico. He owned two turkey hens and sixty-seven chickens which he kept in á chicken-house situated on his farm, near his dwelling. On. Sunday evening, January 8,1905, these turkeys and chickens were put into the chicken-house and the outside door securely fastened with a button. A light snow fell after ten o’clock that night. On going out in the yard, Monday morning, Mr. and Mrs. Stewart discovered the chicken-house door unfastened and open, and that one turkey hen and twenty-five of their chickens were gone. The chickens would have weighed, on an average, five and a half pounds each, and the turkey hen would have weighed about fifteen pounds. Stewart also discovered the tracks of a man leading from the 'chicken-house across the yard, and down the public road. The tracks indicated that the man had made three trips to the chicken-house, and they led back to a point on the road where it appeared a buggy and two horses had been standing in the snow. These tracks came from the direction of Mexico and led back in the same direction. Both horses had been shod, so that Stewart and his son had no trouble in tracking them all the way to Mexico. On reaching that town, Stewart went to the livery stable of A. M. Barnes, where he was shown a buggy which defendant had used the night before. It was a two-horse buggy, and had in it some chicken feathers and other chicken litter. Defendant had hired this buggy and team at nine o ’clock, Sunday night, saying at the time that he wanted to drive A girl to. the country after church, and that he would be gone all «Light. He returned to the livery stable abont 9 o ’clock Monday morning. About half past'eight o’clock, the same morning, defendant appeared at the poultry house of Sam Wayne, in Mexico, to whom he sold one turkey hen weighing fifteen pounds, and 132 pounds of chickens. Wayne testified that the defendant carried the fowls that he purchased from him in two sacks; and some under the buggy seat; that the turkey and chickens were at once killed and picked, and in about an hour Mr. Stewart came in and inquired for his fowls.

The defendant’s evidence tended to show that Stewart, in a conversation had with witness Edward Rodhonse, said that the chicken thief drove in a wagon, which he afterwards called a rig; that one inch of snow fell sometime between seven o ’clock Sunday night and seven o ’clock Monday morning, and that the thermometer that night was eleven degrees above zero.

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

“Now comes John D. Orear, prosecuting attorney within and for Audrain county, Missouri, upon his official oath and upon his information, knowledge and belief, and informs the court that at the county of Au-drain and State of Missouri on the 8th day of January, 1905, one J ack McGuire did then and there feloniously and burglariously break into and enter in the nighttime a chicken-house being a building belonging to and the property of another, to-wit, one Lee Stewart, there situate, by unfastening the latch of an outer door and forcibly pushing said door open — said building being one in which there was at that time goods, wares and merchandise, and other valuable things kept and deposited, with the intent the goods, wares and merchandise and other valuable things there kept and deposited to steal, take and carry away, against the peace and dignity of the State.”

At the close of all the evidence defendant asked instructions in the nature of demurrers to the evidence, which were refused by the court, and defendant saved his exceptions.

The following instructions were given by the court:

“1. If the jury believe from the evidence in the cause, and beyond a reasonable doubt, that the defendant, on or about the 8th day of January, 1905, at the county of Audrain, and State of Missouri, broke into and entered, in the nighttime, the chicken-house of one Lee Stewart, by forcibly unfastening the latch of the outer door of said chicken-house building and forcibly pushing said door open, and that there were at said time in said chicken-house building goods, wares and merchandise, and other valuable things, to-wit, chickens and turkeys kept and deposited, and further believe from the evidence, and beyond a reasonable doubt, that the defendant did so break into and enter said chicken-house building with the intent of stealing, taking and carrying away, converting to his own use, and of depriving the owner permanently of his property, and against the owner’s consent and without any honest claim of right thereto, any of the chickens and turkeys then in said chicken-house and belonging to said Lee Stewart, then the jury will find the defendant guilty of burglary in the second degree, and will assess his punishment at imprisonment in the penitentiary for a term of not less than three years.
“2. You are further instructed that you are the sole judges of the weight of the evidence and the credibility of the witnesses, and in passing upon such weight and credibility, you may take into consideration the demeanor of the witness on the stand, his or her interest, if any, in the result of the suit, his or her prejudice or bias, if any, either for or against the accused, his or her opportunities for knowing the facts to which they testify and dispositions to relate them truly and correctly or otherwise, the probability or improbability of his or her statements on the stand, as well as all the facts and circumstances given in evidence. And you are further instructed that if you believe that any witness has intentionally testified falsely as to any material fact in the case, then you are at liberty to disregard all or any part of the testimony of such witness or witnesses.
“3. You are further instructed that the law presumes the defendant innocent of the charge, and that the burden rests on the State to show to you from the evidence in the case, his guilt, as charged, beyond a réasonable doubt. If you have a reasonable doubt of his guilt you will give him the benefit of such doubt and acquit Mm, but a doubt sufficient to justify an acquittal on that ground should be a substantial doubt touching his guilt, and not a mere possibility of his innocence.
“4. The jury are instructed that there can be no conviction in this case unless they believe from the evidence, and beyond a reasonable doubt, that the defendant actually entered, by forcibly unfastening a latch or other secure fastening, a building which was just before such entering by the defendant so securely fastened as to all of its openings that no one could enter said building without using some force. And that there was within said building at the time of such entering, goods, wares and merchandise, or other valuable things, and that the defendant forcibly entered said building for the purpose and with the intent of stealing the same or some part thereof and for no other purpose.
‘ ‘ 5. The jury are instructed that there is no charge of larceny in this case, and although the jury may believe that the defendant stole the chickens and turkey, they will nevertheless acquit unless they believe-, beyond a reasonable doubt, that the defendant is guilty of burglary, as defined in the other instructions.”

To the giving of such instructions defendant, by his counsel, then and there excepted and saved his exceptions.

At the request of defendant, the court gave the jury the following- further instructions:

“The court instructs the jury that to constitute a burglary-there must be an entry effected by means of a breaking of the building itself, or the opening by force of a closed fastening, and an unlawful entry through an open door or window does not constitute burglary.
“The court instructs the jury that the felonious intent to commit a crime within a building is a separate element of the offense, and, in order to convict of a burglary, there must be proof of some fact or circumstance or some act or declaration of the defendant in addition to the proof of a mere breaking and entering from which the jury can find such an intention.
“To warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with the main fact sought to be proved; and the circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing a reasonable and moral certainty that the accused, and no other person, committed the offense charged; the mere union of a limited number of independent circumstances, each of an imperfect and inconclusive character, will not justify a conviction; they must be such as to generate and to justify full belief according to the standard rule of certainty.
“It is not sufficient that they coincide with and render probable the guilt of the accused, and they must exclude every other reasonable hypothesis.
“No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, and the facts must he absolutely incompatible with innocence, and incapable of explanation upon any other reasonable hypothesis of guilt.
“The court instructs the jury that by ‘building,’ as used in these instructions, is meant a structure erected by the hands of man, and which is wholly closed or capable of being closed.
“The court instructs the jury that if from the evidence offered by the State, or if from the lack of testimony on the part of the State, you entertain a reasonable doubt of defendant’s guilt, he is entitled to acquittal, and in such case, under the law, it is your duty to acquit him without considering which side has offered whatever testimony was given in the case.
“The court instructs the jury that in this case the State depends upon circumstantial evidence alone to establish the perpetration of the crime itself, and to identify the defendant as the one who perpetrated the crime, and you are instructed that all the facts and circumstances relied upon by the State as establishing the perpetration of the crime, and the identity of the defendant must be consistent with each other and with the facts sought to be established, and wholly inconsistent with any other possible conclusion than that the crime was in fact committed and the identity of the defendant as the person who committed it.
“The court instructs the jury that the information in this case is a mere formal accusation against the defendant, that it is absolutely no evidence of his guilt, and no juror should permit himself to be influenced against the defendant because of the indictment having been found against him.
“The court instructs the jury that the probability of defendant’s guilt, as charged in the information, is not sufficient to warrant a conviction, nor is it sufficient that the greater weight or preponderance of the evidence supports the allegations in the information, nor is it sufficient that upon the doctrine of chance it is more probable that the defendant is guilty.
‘ ‘ To warrant a conviction of the defendant, he must be proved to be guilty so clearly and conclusively that there is no reasonable theory upon which he can be innocent, when all the evidence in the case is considered together.
“The court instructs the jury that the burden of proof to establish the guilt of the defendant devolved upon the State throughout the entire trial, and the law clothes the defendant with the presumption of innocence, which attends and protects him until overcome by competent evidence which proves his guilt to your satisfaction beyond a reasonable doubt.
“It is not sufficient in this case that there may be a suspicion or possibility or probability' of his guilt, nor can his guilt be arrived at by guessing, or a compromise among the jurors themselves,or by a compromise in the minds of any one juror, but the testimony must be of a nature that when you have considered it all you find a clear and abiding conviction of the guilt of the defendant beyond a reasonable doubt. This much is required by the law; if this much has not been proven, you will find the defendant not guilty.”

Many objections-are urged against the information, most of which are without merit, and only such as appear meritorious will be noticed.

Defendant contends that the information fails to allege and describe any property kept or deposited in the chicken-house answering to the description of “goods, wares, and merchandise," or other valuable thing,” and thereby enable the court to see that the property was such as, in law, is the subject of larceny, and the defendant to know what it was he was charged with' stealing.

Practically the same question was before this court in the ease of State v. Helm, 179 Mo. 280, in which the defendant therein was charged with feloniously and burglariously breaking into a certain chicken-house belonging to Charles Trampe and his wife, Anna- E. Trampe, and stealing therefrom eleven chickens of the value of two dollars and seventy-five cents, Gantt, J., speaking for the court, said: “Nor does it make the slightest difference that the chickens are driven or voluntarily go into the chicken-house at night to roost, and are then locked or fastened in, instead of catching them and putting them in by force. The language of the statute is, ‘in which goods, wares, merchandise or other valuable thing is kept or deposited. ’ The poultry product of Missouri is to-day one of its chief sources of wealth, and chickens; locked up in a hen-house at night are kept therein as much as wheat deposited in a granary or storehouse, and the intention of the Legislature it to protect one as much as the other from prowling thieves, such as the evidence tends to show defendant was. The recent act of the Legislature, approved March 18,1903, making the stealing of any domestic fowl from the premises on which any dwelling-house is situated grand larceny, irrespective of its value, strongly enforces the intention of the Legislature to eradicate this offense. ’ ’ This decision clearly recognizes the idea that chickens and all kinds of poultry are valuable things within the meaning of section 1886, Revised Statutes 1899, upon which the information is based. The information charges the offense in the language of the statute, and is in approved form. [Kelley’s Crim. Law and Prac., sec. 609; State v. Tutt, 63 Mo. 595; State v. Henley, 30 Mo. 509.]

It is said for defendant that the court erred in refusing to give the instruction asked by him at the close of the State’s testimony, because the ownership of the chicken-house was not proven to be in any one other than the defendant. While it is true there was no direct evidence of ownership of the chicken-house in Lee Stewart, as alleged in the information, there was an abundance of evidence that he was in the actual possession of it at the time of the burglary and such evidence sustained the allegation of ownership in him. ‘ In burglary, ownership means any possession which is rightful as against the burglar.” [2 Bishop’s New Crim. Proc., sec. 137; Henderson’s case, 98 Va. 794.]

All of the instructions given by the court of its own motion are criticised by defendant, and claimed to be erroneous for various reasons assigned by his counsel. To this we cannot agree. Taking the instructions as a whole, they presented the case very fairly to the jury, and seem to be free from error.

The court rightly refused the instruction asked by defendant to the effect that there was no evidence of larceny in the case. The evidence adduced by the State tended to prove that defendant not only burglarized the chicken-house, but that he took, stole, and carried away therefrom the chickens and turkey, as charged in the information. Nor did the court fail to instruct upon all the propositions of law involved in the case,' as contended by defendant. It instructed upon reasonable doubt and the burden of proof. No instruction was necessary as to what is meant by the terms “goods, wares and merchandise” and “other valuable thing kept and deposited,” as it must be presumed that any person of sufficient intelligence to serve upon a jury in an ordinary case understands the meaning of terms and phrases in common use, and especially as to what is meant by and what constitutes a valuable thing.

A final contention is that the verdict was for the wrong party, and against the weight of the evidence. The latter assertion seems to indicate that there was some evidence tending to show defendant’s guilt. It is unnecessary to say more, in answer to this, than that the weight of the evidence was for the consideration of the jury, and where there is substantial evidence to support the verdict, this court will not interfere. [Culbertson v. Hill, 87 Mo. 553, and subsequent cases.] in the case at bar, however, several strong inculpatory circumstances are established connecting the defendant with the crime charged against him. The facts that defendant sold a number of chickens and a turkey hen, suiting the description of those stolen from Stewart; that he conveyed them to market in a buggy answering the description of the one he had gotten from the livery stable the night before; that he hired it for the pretended purpose of taking a young lady to the country; that when the vehicle was returned to the livery stable, chicken and turkey feathers and fresh .chicken litter were found therein, all pointed strongly to defendant’s guilt, and in the absence of any sort of explanation from him, established his guilt beyond any doubt. The judgment is affirmed.

All concur.


author: BRACE, P. J.

text:
    FREDERITZIE v. BOEKER, Appellant.
    Division One,
    February 22, 1906.
    1. SURVEYS: Corners. The corners established by the United States surveyors in surveying the public lands are conclusive as to the actual location of the boundary lines of sections and such subdivisions thereof as are authorized by the laws of the United States.
    2. _: _: FRACTIONAL SECTION: River: Meanders: Accretions. The line of a section, whose corner is established in the range line on the shore of the Meramec river, because the true corner falls at an inaccessible point in the river, is the meanders of the river, if so designated in the survey, from the section corner so established, along the river’s shore, to the parallel line crossing the range line. Such a section is fractional, and the shore line was its boundary, and accretions to that shore line became a part of that section.
    3. ACCRETIONS: Fractional Section: Prolongation of Lines. The owner of a fractional section is entitled to all the accretions formed by an extension of the shore line, and not simply to so much thereof as is included within a prolongation of the usual sectional lines to what would have been the section corner had the made land been there when the United States survey was made.
    Appeal from St. Louis County Circuit Court. — Hon John W. McElhinney, Judge.
    Affirmed.

      Benj. J. Klene and R. L. Johnston for appellant.
    (1) Under the law plaintiff’s accretions could never extend beyond the section and range lines at his southeast corner. Shelton v. Maupin, 16 Mo. 124. (2) Where the shore line of two or more bodies of land, divided by a water course, receive accretions until they come together, the line of contact will be the dividing line. Buse v. Russell, 86 Mo. 209. (3) Plaintiff failed to make a showing that the accretions he is claiming were formed against land. Therefore, the court erred in its finding and judgment for him because “the accretions belong to the man who owns the land against which the deposits were made, and they do not belong to the man who owns the land against which such deposits were not made, although they cover the place where his land was before the river washed it away.” Widdicomb v. Chiles, 173 Mo. 195. But here there were no accretions to plaintiff’s land. Price v. Hallett, 138 Mo. 561; Hahn v. Dawson, 134 Mo. 581. (4) The government surveys of plaintiff’s lands, which cannot be changed, made plaintiff’s lands a limited field. He is, hence, not entitled to recover any accretions, if any, along and against said arbitrary lines. Smith v. Public Schools, 30 Mo. 290; Elinger v. Railroad, 112 Mo. 527; Sweringen y. St. Louis, 151 Mo. 348.

      J. G. Kiskaddon for respondent.
    (1) Where a deed conveys fractional quarter sections which were originally bounded by the river, it carries all accretions, and the grantee’s right to such accretions cannot be affected because the deed describes the land as the “southeast fractional quarter of section 13.” Gorton v. Rice, 153 Mo. 683. (2) The instructions of the court dividing the accretions proportionately between the coterminous proprietors are correct. Benne v. Miller, 149 Mo. 243; Crandall v. Allen, 118 Mo. 411; Deerfield v. Arms, 17 Pick. 41. (3) In dividing accretion no attention is to be paid to the side lines of the coterminous proprietors, but the accretions are to be divided so as to give each riparian owner his proportion of the accretions. Crandall v. Allen, 118 Mo. 413; DeLassns v. Paherty, 164 Mo. 372.
   BRACE, P. J.

— This is an appeal by the defendant from a judgment and decree of the St. Louis County Circuit Court in favor of the plaintiff.

The petition is in two counts. The first count is ejectment for the recovery of a small .tract of land, described in the petition and judgment by metes and bounds, and which it is alleged is an accretion to plaintiff’s land from the Meramec river. The second count is for injunction to restrain the defendant from erecting or maintaining an embankment or causeway across said tract of land whereby plaintiff’s access to said river would be cut off. On the filing of the petition a temporary injunction was granted as prayed for in the second count of the petition, and, in due course, the cause coming on to be heard on both counts, was submitted to the court without a jury, and the following judgment and decree rendered therein:

‘ ‘Now at this day come the parties in the above-entitled cause by their respective attorneys and a jury being waived the cause is submitted to the court on both causes of action stated in the petition, and the court having heard the evidence, and the argument of counsel, doth find that plaintiff, under the first cause of action stated in the amended petition, is entitled to recover of the defendant the possession of the real estate sued for in said first cause of action, which real estate is described as follows, to-wit: Commencing at a stake set. for and at the original corner of the range line between ranges five and sis east, it being the original corner on the bank of the Meramec river to the southeast fractional quarter of section thirteen, in township forty-three, of range five east; thence south thirty-seven • degrees and thirty-two minutes west along the original bank of said Meramec river, four chains and 'five and three-fourth links to a stake set for and at the original corner on the section line between fractional section thirteen and twenty-four, in township forty-three, of range five east, it being the original corner on the bank of the Meramec river to the said southeast fractional quarter of section thirteen, in township forty-three, of range five east; thence south eleven degrees and fourteen minutes east, two chains and ninety-seven links to the bank of said Meramec river; thence down the said Meramec river with meanderings thereof north forty-three degrees and forty-eight minutes west, four chains and twenty-two links to a point on said bank; thence north eighteen degrees and sixteen minutes west, three chains and twenty-five links to the place of beginning, said tract of land being situated in St. Louis County, Missouri, and being an accretion to the said southeast fractional quarter of section thirteen, in township forty-three of range five east, formed by the action of said Meramec river depositing earth, sand, soil and other substances to, along and against said fractional quarter section; and also under said first cause of action to recover of the defendant the sum of one dollar damages for the unlawfully withholding the possession of said real estate from plaintiff, and also one cent per month for monthly rents and profits of said real estate from the rendition of this judgment until possession of said real estate is delivered to plaintiff. And the court doth further find the issues for the plaintiff on the second cause of action stated both in the original and amended petition, and. that at the commencement of this action defendant, his agents and servants were engaged in doing and threatening to do the acts complained of by plaintiff both in said original and said amended petition. It is, therefore, considered and adjudged by the court that plaintiff recover of the defendant the possession of the aforesaid real estate, and said one dollar damages, and said one cent per month for monthly rents and profits from the rendition of this judgment until possession of said real estate is delivered to plaintiff, and it is further ordered, adjudged and decreed that the temporary injunction and restraining order hereinbefore made be and it is hereby made permanent, and that the defendant, his agents and servants be, and they are, each and all.hereby forever restrained and enjoined from erecting or maintaining an embankment or causeway on, along, or across said real estate, or any part thereof, and from excavating any earth from or on said real estate or any part thereof, and that plaintiff recover of the defendant his costs and charges herein expended, and that plaintiff have against defendant a writ of possession and execution to recover the possession of said real estate, said damages, monthly rents and profits and costs.”

From this judgment and decree defendant appeals.

I. The plaintiff is the owner of the southeast fractional quarter of section 13, township 43, range 5 east, and claims the land in controversy as an accretion to his quarter section. The defendant is the owner of fractional section 24 in said township and range and of the south half of the southwest quarter of fractional section 18, township 43, range 6 east, is in possession of the premises sued for and contests the plaintiff’s claim, his. answer being a general denial.

The location of the land in controversy in relation to the land of plaintiff and defendant, respectively, and to the north shore of the Meramec river as it was when these lands were surveyed by the surveyors of the United States government, and as it was when this suit was instituted, is roughly shown by the following diagram:

The land in controversy is contained within the lines a, A, c, d, a. At the time the United States government survey was made it was all under water, the north shore of the Meramec river then being as indicated on the diagram by the line marked, “Meramec river 1816-18.” Since that time, by the recession of the river to the line marked, “Meramec river 1903,” it has all become dry land. That the land is an accretion to the land on the north shore as it was when originally surveyed is conceded, and the only question is, does it belong to the plaintiff as an accretion to his southeast fractional quarter of section 13, aforesaid? The circuit court held that it did, and in so doing was manifestly correct.

It is well-settled law that “the corners established by the United States surveyors in surveying the public lands are conclusive as to the actual location of the boundary lines of sections and such subdivisions thereof as are authorized by the laws of the United States.” [Climer v. Wallace, 28 Mo. 556; Mayor of Liberty v. Burns, 114 Mo. 426.]

It appears from the evidence that according to the United States surveys, section 13, township 43, range 5, is a fractional section, made so by the Meramec river, which was treated by the surveyors as a navigable stream, whose shores were defined by meander lines which became the boundary lines of those subdivisions that abutted upon it, and upon which the section lines closed. Hence, when the range line between five and six was being run from the south, the southeast corner for that fractional section was established, not at 80 rods from the last corner, which was designated as “an inaccessible point,” but in the range line on the north shore of the river three chains and fifty links north of that “inaccessible point.” The corner as thus established by the United States surveyors is designated on the diagram by the letter “a.” Prom that point the north shore of the river meandered in a southwest direction until it was intersected by the south sectional line of said fractional section at a point designated on the diagram by the letter “b” and thus the south line of said fractional section as established by the United States survey became a line designated on the diagram as a, b, †, that part of the boundary between “a” and “b” being the shore line of the river and the shore front of fractional section 13 to which the land in controversy was an aeerétion, and the court committed no error in holding that this accretion was the property of the plaintiff.

II. There is nothing to support defendant’s contention that the south line of the fractional section should be extended in a straight line until it intersects the range line at a point marked “e” on the diagram, and that plaintiff has no title to any part of the accretion outside the lines a, b, e, a.

As this case was tried by the court, and as upon the undisputed facts in the ease the judgment was for the right party and could not have been other than it was, it becomes unnecessary to note the points made in brief of counsel, which do not affect the merits of the case.

The judgment of the circuit court is affirmed.

All concur.