author: BLAIR,' C.

text:
    THE STATE, Appellant, v. FRANK BECKER et al.
    Division TWo,
    March 12, 1913.
    1. ESTABLISHING LOTTERY: Indictment: Content of Term “Lottery.” An indictment is not duplicitous which alleges that defendants- established “a certain lottery and scheme of drawing, in the nature of a lottery,” etc. As now defined the term “lottery” includes every scheme which could be punished under the description “scheme in the nature of a lottery.”
    2. -: Aiding and Assisting: Indictment: Name of Those Aided. Where defendants were indicted for the specific statutory offense of aiding and assisting in making and establishing a lottery, the inclusion in the indictment of the names of the persons aided was not necessary to its validity.
    3. -: -:--: Name of the Lottery. An indictment for establishing a lottery is not duplicitous because it charges that the lottery and scheme of drawing established is “known as the Old Reliable Company and the Standard Investment Company.” Whether they are names of the same scheme or names for parts of it makes no difference, if, as this indictment charges when correctly interpreted, they are names applying to the same thing.

      4. -: -: -: Pleading Evidence. Section 4770, R. S. 1909, rendering the establishing or aiding to establish a lottery a felony, sufficiently individuates the -offense it. defines, and indictments following its language are sufficient. It is unnecessary to plead the evidence by which the indictment is to be supported.
    5. -: -: -: Time of Drawing. An allegation in an .indictment for establishing a lottery, that certain sums of money “were thereafter to be disposed of by lot and chance,” is not bad for repugnancy or absurdity. The-language of Sec. 4770 justifies the conclusion that a drawing in the past is not an essential to the offense under the statute except as the proof may show it to be essential to the making or establishing of the particular lottery, and to that extent it is included in the simple allegation of- establishing the lottery.
    Appeal from St. Louis City Circuit Court. — Hew. George G. Hitchcock, Judge.
    Reversed and remanded (with directions).

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) Section 4770, R. S. 1909, sufficiently individuates the offense, and so the indictment, in all its three counts, properly follows the language of the statute. It is not necessary that it should define a lottery, etc., or allege in what manner it was made or established. State v. Miller, 190 Mo. 449; State v. Cronin, 189 Mo. 663; State v. Wilkerson, 170 Mo. 184; State v. Kaub, 90 Mo. 197; Kansas City v. Kahner, 73 Mo. App. 396; State v. Edgen, 181 Mo. 582; 25 Cyc, 1648. (2) It is entirely unnecessary for the indictment to aver or charge the manner in which the lottery, or scheme of drawing in the nature of a lottery, was established (except as a business or avocation), or who was to distribute the money or prizes, or for it to set forth the number and value of the prizes, or that any lottery was actually drawn. State v. Edgen, 181 Mo. 582; State v. Hindman, 4 Mo. App. 582; 25 Cyc. 1649. . (3) To make and establish, or aid in making and establishing a lottery, it is not indispensable and absolutely necessary that there be an actual distribution or disposition, past or present, of the prizes. If prizes are offered pursuant to the scheme the fact that it is possible that one may or may not win a prize -will not prevent the scheme from being a lottery. The gist of the offense is the element of chance, and the'manner of distribution is immaterial. 25 Cyc. 1633, .1640; State v. Perry, 154 N. C. 616; Flemings v. Bills, 3 Ore. 286; Thomas, Nonmailable Matter, sec. 71. The term “lottery” has no technical meaning in the law distinct from its popular significance. A lottery is a scheme for the distribution of prizes by chance or the distribution itself when the latter depends upon chance. 5 Words and Phrases, 40425; Commonwealth v. Sullivan, 146 Mass. 142; Holoman v. Estate, 2 -Tex. App. 610; Commonwealth v. Manderfield, 1 Leg. Graz. R. (Pa.) 37; New Orleans v. Collins, 52 La. Ann. 973. There are three essential ingredients in a lottery— consideration, prize and chance. Equitable L. & S. Co. v. Waring, 117 Ga. 599; State v. Mumford, 73 Mo. 647; United States v. Fulkerson, 74 Fed. 619; United States v. Wallis, 58 Fed. 942; United States v. Olney, 1 Abbot, 275; 27 Fed. Cases, No. 15918; Bishop on Stat. Crimes (2 Ed.), sec. 952, note 2; PIull v. Ruggles, 56 N. Y. 424. '

      Charles F. Krone for respondents.
    (1) Each count fails to allege facts sufficient to constitute a crime. (2) Each count fails to inform the defendants of the cause and nature of the accusation; duplicity, ambiguity, repugnancy. (3) .Each count fails to state facts constitutive of a lottery or of a scheme of drawing in the nature of a lottery. (4) Each count is duplicitous and ambiguous in that each charges, or attempts to charge, two distinct felonies. State v. Miner, 233 Mo. 132; State v. Huffman, 136 Mo. 51. (5) The first and second counts are void for a repugnance, which renders a charge of crime impossible, in alleging or attempting to allege that defendants made and established, as an avocation and business, on a certain day, or aided in making and establishing, as an avocation and business, on a certain day, a lotteryv or a scheme of drawing in the nature of a lottery, whereby money was thereafter to be distributed by lot and by chance. (6) The first and second counts allege no connection on the part of the defendants, between the “making and establishing” of a lottery, at a certain time, and the subsequent disposition of money; “whereby large sums of money were thereafter to be disposed of” is the language, but whether by respondents or others acting with them or independently of them, or by nature or fate, does not appear. Nor are we told to whom the money was to be “disposed” of. United States v. -Goodring, 12 Wheat. 460; Heard, Crim. Pleadings, 167. (7) The second and third counts charge respondents with aiding and assisting, but fail to charge this according to the facts, for they fail to say who it was that they aided or assisted, or that the person aided or assisted is to the grand jury unknown. They might be indicted as principals and convicted as accessories, but where they are charged as accessories, the charge must be according to the facts. Here they are charged as accessories, without principals. Kelley, Crim. Law, sec. 51, p. 39; State v. Taylor, 21 Mo. 480; State v. Slacy, 103 Mo. Ill; State v. Noeninger, 108 Mo. 166; State v. Herman, 117 Mo. 629; State v. Schuchmann, 133 Mo. 115; State v. Hopper, 71 Mo. 427.; Comm. v. Glover, 111 Mass. 395; Comm. v. Adams, 127 Mass. 15; People v. Coyodo, 40 Cam. 586. (8) The third count represents the extreme of. abstraction in pleading, which falls short in every respect of stating .an offense, contains the vices of duplicity and ambiguity which mark the first and second counts and their other defects, except the repugnancy pointed out in the fifth paragraph above. Bishop, Directions and Forms, chap. 53, secs. 672, and 676, note 5.
   BLAIR,' C.

This case is here on the State’s appeal from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to an indictment containing three counts, the first of which (omitting formal parts) charged that defendants, on a day stated, “did knowingly, wilfully and feloniously, make and establish as a business and avocation, in the city and State aforesaid, a certain lottery and scheme of drawing, in the-nature of a lottery, known as the Old Reliable Company and the Standard Investment Company, whereby large sums of money, to-wit, ten thousand dollars and divers other sums, were thereafter to be disposed of by lot and chance, the particular method by which said disposition of said sums of money was to be made, being to these grand jurors unknown; against,” etc.

The second count is identical with, the first except it charged defendants “did aid and assist in making and establishing,” etc., instead of charging they “did make and establish,” etc.

The third count is identical with the second except it omits the charge that money was to be disposed of by lot and chance and omits the statement as to the grand jurors’ lack of knowledge as to the method to be employed.

The grounds of demurrer are that neither count states facts sufficient to constitute an offense; that neither count apprises defendants of the nature and cause of the accusation against them; that all the counts are bad by reason of duplicity and repugnancy; that neither count charges the commission of a crime, but merely an intent to commit a crime in the future and that all the counts are “uncertain, vague, indefinite, repugnant and duplicitous . . . and could not be pleaded in bar of any future prosecution.”

The indictment follows closely, almost literally, approved forms (State v. Miller, 190 Mo. l. c. 451, 452), but it is suggested new' questions are presented by the demurrer in the instant case and, further, that in one particular the indictment differs from that heretofore approved.

I. It is argued with , much force that duplicity appears from the charge that defendants made and .established “a lottery and scheme of drawing in the nature of. a lottery.” It is' contended ^erm “lottery” and the phrase “scheme of drawing in the nature of a lottery” relate to things so different that the employment of both in the same count constitutes duplicity. The statute is leveled against any person who shall “make or establish, or aid or assist in making or establishing any lottery, gift enterprise, policy or scheme of drawing in the nature of a lottery, as a business or avocation in this State. . . .” It is not denied that the term “lottery” is, as interpreted by the courts of other States, broad enough to include every punishable plan, scheme or device whereby anything of value is disposed of by lot or chance, and it is not contended there yet has been devised nor that there could be devised any scheme in the nature of a lottery that the term lottery is not, as thus interpreted, broad enough to cover. It is said, however, the framers of the Constitution and the statute must have had a less comprehensive meaning in mind, otherwise they are convicted of employing useless words, a conclusion not favored. It is to be observed, however, that at the time the Constitution was framed'the meaning of the term “lottery” was not so well settled as now and there was even then a contention being made in our courts that there was a distinction between a ‘ ‘ regular” lottery and other devices similar in respect to the elements which rendered them culpable, but not conducted with the same formalities. [State v. Hindman, 4 Mo. App. l. c. 582.] Doubtless to meet such a conception the framers of the Constitution (Sec. 10, art. 14) used the phrase “scheme in the nature of a lottery. ’ ’ „ The courts of this State had not then given to the word “lottery” the broad definition (State v. Mumford, 73 Mo. 647) subsequently approved and it seems caution rather than necessity dictated the employment of the additional words “scheme in the nature of a lottery. ’ ’

In State v. Willis, 78 Me. l. c. 72, 73, in discussing an indictment charging that defendant was engaged “in a lottery, scheme of device of chance” the court said: “The word lottery has no technical meaning. A lottery is nothing more or less than' a scheme or device of chánce.” As now defined in -this State and elsewhere we think the term “lottery” includes every scheme which could he punished under the description “scheme in the nature of a lottery” and that, consequently, the use of this further phrase in the indictment does not invalidate it. Certainly as to the first two counts there is no duplicity, since there is added in each a description of the purposes of the device which clearly characterizes it as a lottery,

II. It is contended the second and third counts shouki have named the persons aided and assisted, and the failure to do so warranted the trial court's action in sustaining the demurrer as to them. That this court has entertained a contrary view is evidenced by its approval of indictments like this, and by its view, heretofore announced (State v. Wilkerson, 170 Mo. l. c. 193), that there is no more effective way to assist in making and establishing a business as a vocation "than to participate in it and devote one's time and services in so doing." Three are here jointly charged with aiding and assisting. All three are charged, therefore, with "participating in it and devoting their time and services to it," i. e., with aiding and assisting each Qther. These counts of the indictment might well be said, therefore, to name each defendant as aiding the others. It is unnecessary, however, to resort to this argument to uphold them. The defendants are not indicted as accessories, but for the specific statutory offense of aid•• ing and assisting in making and establishing a lottery. It is "hut another mode of committing or participating in the offense" (Miller v. Com., 76 Ky. l. c. 736) and is sufficiently charged in the statutory words. [State v. Bush, 70 Kan. l. c. 740.]

III. It is insisted duplicity conclusively appears from the fact each count charges that the lottery and scheme of drawing is “known as the Old Reliable Company and the Standard Investment Company.” This part of the charge amounts only to an allegation that the scheme bore two names. "Whether they are names of the same scheme or names for parts of it makes no difference if, as each count charges, when correctly interpreted, they are names applying to the same thing. There is no duplicity, in this respect, on the face of the indictment.

TV. It has so frequently been held that this section of the statute (Sec. 4770, R. S. 1909) sufficiently individuates the offense it defines and that indictments following its language are sufficient, that it is unnecessary to discuss the argument in support of a contrary view. The statute denounces and the indictment charges the making and establishing of a lottery as a business or (sic) avocation. The term lottery has a well known meaning and definition which, substituted in the indictment for the word itself, would leave little room for the contention mentioned. The statute was designed to suppress the business and vocation of those who, by lottery schemes, preyed upon the credulity of the unwary. Each count charges defendants were engaged in such business and is sufficient to advise them of the nature and character of the accusation against them, as the authorities cited in the briefs fully disclose. It is unnecessary to plead the evidence by which the indictment is to be supported. [Com. v. Harris, 95 Mass. l. c. 539.]

V. It is contended the allegation, in each of counts 1 and 2, that certain sums of money “were thereafter to be disposed of by lot and chance” are repugnant and absurd and, further, do not connect defendants, by alleged act or intent, with the future disposition of money.

In this respect, also, the indictment is like that in State v. Miller, supra. The statute condemns all lotteries, etc., made or established “as a business or avocation” without regard to whether drawings have been had, and this court, as counsel concedes, seems once to have passed on this-point (State v. Pomeroy, 130 Mo. l. c. 496) adversely to the present contention. Whether what is there said is to be taken as intended to mean solely that it was not necessary for drawings to occur in this State, thus limiting it to the facts in that case, is not important since the language of the statute justifies the conclusion that a drawing in the past is not an essential to the offense under the statute except as the proof may show it to be essential to the making or establishing of the particular lottery established and to that extent it is included in the simple allegation of establishing the lottery. It is certainly conceivable that a lottery may be established prior to any actual drawing. [Salomon v. State, 27 Ala. l. c. 29.] The judgment is reversed and the cause remanded with directions to overrule the demurrer.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: WILLIAMS, O.

license: Public Domain

text:
    THE STATE v. WILLIAM E. RICHARDSON, Appellant.
    Division Two,
    March 12, 1913.
    1. SUBORNATION OF PERJURY: Questions of Law. In a prosecution for subornation of perjury the jurisdiction of the court which tried the case wherein it is alleged the perjury was committed, the authority of the officer administering the oath to the witness in that case, and the materiality of said witness’s testimony to the issues therein, were all questions of law, and it was therefore not error to fail to submit those questions to the jury.
    2.--: Suborner and Suborned not Accomplices: Testimony: Cautionary Instructions. A perjurer and his suborner are not accomplices, and therefore a cautionary instruction with reference to the perjurer’s testimony at the trial of his suborner should not be given.
    3. -: Testimony of Suborned: Corroboration. It is not necessary to a conviction for subornation of perjury that the testimony of the perjurer be corroborated, either as to the act of subornation or as to the fact that the perjury was actually committed.

      í. -: Information: Scienter. An information for perjury which, after alleging the perjury, charges that defendant, before the committing thereof, wilfully, feloniously, maliciously, falsely and corruptly persuaded the one suborned to commit the crime, sufficiently charges that defendant knew the witness would swear falsely. The words “wilfully, feloniously, maliciously, falsely and corruptly,” import such intent and knowledge.
    B.' -: Verdict: General: Information: One Offense. Although in an information for subornation of perjury several perjured statements are specified as made by the suborned witness during the defendant’s trial for assault, and it is further charged that defendant had suborned all of such testimony,yet the information charged but one offense, and where the information charges but one offense, a general verdict in form is sufficient.
    Appeal from gt. Louis City Circuit Court. — Eon. Leo 8. Rassieur, Judge
    Affirmed.

      Elliott W. Major, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) The information follows the language of the statute and contains every essential element necessary to the offense charged. Secs. 4346, and 4351, E. S. 1909; Sherwood’s Com. on Crim. Law, pp. 413-416; Kelley’s Grim. Law & Prac. (2 Ed.), p. 563. The use of the words “maliciously and falsely” sufficiently charges that the defendant knew the witness would swear falsely. Commonwealth v. Devine, 155- Mass. 224; Stewart v. State, 22 Ohio St. 477; 2 Wharton’s Criminal Law (11 Ed.), p. 1731. (2) Where the information contains but one charge, a general verdict of guilty is sufficient. State v. Ray, 53 Mo. 345; State v. Martin, 230 Mo. 692; State v. Stark, 202 Mo. 210; State v. Bishop, 231 Mo. 415; State v. Gordon, 196 Mo. 185; State v. Shour, 196 Mo. 202; State v. Taylor, 202 Mo. 1. (3) There was no error on the part of the trial court in refusing to give an instruction with reference to the defendant and Harris being accomplices. State v. Shapiro, 216 Mo. 371; State v. Kuhlman, 152 Mo. 103; Wharton’s Crim. Ev. (8 Ed.), sec. 440; State v. Umble, 115 Mo. 461. Harris was guilty of an offense separate and distinct from that of subornation of perjury, viz., perjury itself (Sec. 4344, R. S. 1909). Defendant, however, is guilty under Sec. 4346, R. S. 1909. Subornation of perjury may be proved by the testimony of one witness alone. Comm. v. Douglass, 5 Met. (44 Mass.) 241; State v. Bailey, 190 Mo. 291. (4) The instructions as a whole were correct. Whether or not the court which tried Richardson for assault had jurisdiction was á question of law (State v. Moran, 216 Mo. 556), as was also the question whether the witness Harris had been legally sworn and that as to the materiality of his testimony in the assault case. State v. Moran, 216 Mo. 550; State v. Williams, 30 Mo. 364'; State v. Gannon, 79 Mo. 343; State v. Carpenter, 164 Mo. 588.
   WILLIAMS, O.

On November 9, 1911, defendant was tried and convicted of the crime of subornation of perjury in the circuit court of the city of St. Louis, and his punishment assessed at seven years in the penitentiary. From the judgment and sentence he appeals to this court.

The information charges the defendant with having wilfully, feloniously, maliciously, falsely and corruptly persuaded, incited, procured and suborned one Byrd D. Harris to do and commit wilful and corrupt perjury, by testifying as he did in a case tried on the 12th day of October, 1911, wherein the State of Missouri was plaintiff and this defendant was defendant, the said defendant therein being charged with assault with intent to kill one George Lewis. The information then sets forth all the formal requirements, and specifically sets out the testimony which the witness Harris is alleged to have given at said trial.

The evidence for the State tends to show that on the 12th day of October, 1911, the said felonious assault case was tried in the circuit court of the city of St. Louis; that upon the trial of said cause said Byrd D. Harris- was duly sworn and examined as a witness in said cause, and testified to the effect that he had seen the trouble, occurring July 18, 191.1, between the defendant and one George Lewis, and that while he was going west on the north side of Lawton avenue, in the city of St. Louis, that day, he saw the defendant come out of his place of business and go towards a ladder which was leaning against the wall, and that just as the said defendant was about to take hold of said ladder and lift it, the said Lewis took a knife out of his pocket, and, with the knife- held open in his hand, advanced upon Richardson; that thereupon Richardson stepped back and fired one shot to the side of Lewis; that thereupon Lewis stepped back three or four feet, but again started towards Richardson, making an attempt to cut Richardson with the knife, and that in this situation Richardson fired two shots at Lewis, one of which hit Lewis in the body.

The State produced several witnesses, who testified in substance that they had seen the shooting of Lewis by Richardson on July 18, 1911, and that Lewis did not have an open knife in his hand, nor advance upon Richardson at any time, and further, that there were only two shots fired by the defendant, Richardson, and that the first shot fired was the one that hit Lewis. All of these witnesses swore that they did not see Harris in that neighborhood on that occasion; some of the witnesses stating that they would not swear positively that he was not there, and others, that they had such a view of the situation that, if he was there at- the time, they would have seen him. The State then called the said Byrd D. Harris as a witness, this being the witness the defendant is charged with suborning, and Harris testified at the trial of this case that the testimony given by him at the felonious assault trial was false, and that he had not seen the shooting of Lewis by Richardson on July 18, 1911. He further testified that the defendant- had hired him to testify as he did in the assault case, agreeing to 'give him four dollars if he would so testify; that he went to the courthouse to be used as a witness, that the case was continued for a day or so, that the defendant told him to be sure and come bach, and “not throw him down,” and that he gave his testimony upon the request and at the direction of defendant, and for the promise of the price offered.

Defendant was the only witness offered by the defense. He testified in his own behalf, denying that he had agreed to pay witness Harris for his testimony, or that he had induced him to swear falsely. Defendant further testified that, some time prior to the assault trial, he met Harris on Jefferson avenue, and that there Harris informed him that he had seen the shooting, whereupon he hold Harris that he “would like for him to come down and make a statement to that effect,” and that Harris .agreed to do so. He claims he did not see Harris again until the Monday before the trial, which occurred on Thursday, and that on said Monday he asked Harris why he had not come to court that morning, it being the day on which the case was originally set, for trial, and that he then informed Harris that the case was continued until Thursday, and asked him to. comedo court on Thursday; that Harris said that he did not think he could spare the time to come and that he could not afford to lose all of that time for nothing; that he then told Harris that he would get witness fees for four days, and that that would be four dollars. Defendant further testified that when Harris first told him that he saw the shooting, he did not ask Harris what he saw because he was not interested in what he saw, and that he did no.t know what the witness would testify to until the morning the case was tried, at which time, he claims, the witness told him about the same facts as he later testified to.

Appellant is not represented by counsel here; neither has he filed a brief in this court.

We have carefully inspected the record and proceedings at the trial, and find no questions for discussion other than the following:

In the motion for new trial complaint is made that the court failed to fully instruct on all the law of the case, in that the court failed to require the jury to find (1) that the trial at which the perjury was committed was before a court of competent jurisdiction; (2) that the officer who administered the oath was duly authorized to administer oaths; (3) that the false evidence of witness Harris was material to the issues involved in the assault case; (4) that Harris was an accomplice of defendant, and that his evidence should be received with caution; (5) that the witness testifying as to the perjury should be corroborated by some witness, or other facts and circumstances.

In the motion in arrest of judgment complaint is made, (1) that the information is insufficient, because it fails to charge that defendant knew the witness Harris would swear falsely; (2) that the verdict is insufficient in law to support the judgment, because it is a general verdict, and does not determine which assignment of perjury the defendant was found guilty of suborning the witness to commit,

I. The questions of the competency of the jurisdiction of the court which tried the assault case; of the authority of the officer administering the oath to witness Harris in the assault case, and of the materiality of the testimony of said witness to the issues involved in said assault' case, were each and all questions of law, and not of fact, and it was therefore not error to fail to submit such questions to the jury for determination. [State v. Williams, 30 Mo. 364; State v. Fannon, 158 Mo. 149; State v. Faulkner, 175 Mo. l. c. 617.]

II. Witness Harris was not an accomplice of the defendant in the contemplation of the rule of law which .requires the court to instruct the jury ppg evidence of an accomplice should be received with caution. In order to bring the testimony of the witness within that rule, the witness and the principal offender, or vice versa, must have worked together in committing the same crime. [1 Wharton, Crim. Ev. (10 Ed.), sec. 440.] The crime committed by Harris was perjury, which was a separate and distinct offense from that of subornation of perjury, charged against the defendant, and when this is true they are not accomplices in contemplation of law, and therefore a cautionary instruction with reference to such testimony should not be given. [State v. Kuhlman, 152 Mo. l. c. 103; State v. Shapiro, 216 Mo. l. c. 371; State v. Durnam, 73 Minn. l. c. 165.] In the case of Stone v. State, 118 Ga. 705, in a very able opinion by Judge Lamar, it was held that the perjurer and his suborner are not accomplices within the rule requiring a cautionary instruction. To the same effect is the case of United States v. Thompson, 31 Fed. 331.

III. Defendant next contends that the court erred in failing to instruct the jury that in order to find that perjury was committed in the assault case, they must find that the same was proven by more than one witness, •or by one witness corroborated by other facts.and circumstances.

In mailing proof of the crime of subornation of perjury there are two important steps. First,. it is necessary to prove that the witness alleged to have been suborned committed the wilful and corrupt perjury alleged in the information, and, second, that the defendant procured or suborned the witness to commit said perjury.

So far as we are aware, this is the first case of the kind which has come before this court. In fact, an examination of the reports of other States discloses but few subornation cases.

In perjury cases, the rule at common law, and which has been recognized by this court in State v. Heed, 57 Mo. 252; State v. Faulkner, 175 Mo. 546, and State v. Hunter, 181 Mo. 316, is, that the defendant cannot be convicted on the uncorroborated testimony of a single witness, and that it is error for the court to fail to so instruct. If the same rule is to be invoked in favor of a defendant charged with subornation of perjury, it must be because the reason assigned for the rule in perjury cases exists with like effect in measuring the proof required in subornation cases. And in using this test, it becomes very necessary to inquire into the reason for the rule in perjury cases. The reason for the rule, as stated in State v. Heed, 57 Mo. l. c. 254, is as follows:

“ ‘In proof of the crime of perjury also it was formerly held that two witnesses were necessary, because otherwise there would be nothing more than the oath of one man against another, upon which the jury could not safely convict. ’ But this strictness has long since been relaxed; the true principle of the law being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence.”

Mr. Best, in his work on evidence, gives as a further reason for the rule, that it has a tendency to cause a witness to testify with less apprehension or’ fear, and that by reason of the rule “little difficulty, comparatively speaking, is found in obtaining voluntary evidence for the purposes of justice.” [Best on Evidence, secs. 605, 606; 3 Wigmore on Evidence, sec. 2041.] By what course of logic can these reasons be made to apply to the case of a suborner? Why should the rule as to him be different from that applied in cases of larceny, rape, or other criminal offenses ? The presumption of his innocence certainly is of no greater weight than in the case of one accused of larceny or rape. There is no public-policy reason why his conviction should be made more difficult than in the majority of other felonies. He is not convicted of an offense occurring while he is under oath and testifying. The offense that he commits is virtually consummated before the witness gives his testimony. He is not charged with the giving of false testimony. He does not commit his crime while performing any necessary function in the progress of a trial. Why then should his conviction require greater proof than in convicting for theft? We do not' think it does. All of the authorities hold that a single witness, uncorroborated, can make sufficient proof of the suborning. Some, however, hold or infer that as to the proof of the element of perjury the witness should be corroborated. In reviewing these authorities, we find that this position has been unduly influenced by the existence of the rule with reference to perjury, or by statutory provisions which do not exist in this State. The leading case cited by text-writers is that of People v. Evans, 40 N. Y. 1, where the main witness against the sub- • orner was the self-confessed perjurer. At that time the statute of New York made incompetent as a witness a person who had been convicted of perjury. The court, arguing from that statute, held that a self-confessed perjurer was as unworthy of belief as if he had been convicted and sentenced, and that therefore his ■testimony was not sufficient, but must be corroborated before the suborner can be convicted. The court’s.decision was also builded upon the maxim, “falsus in uno, falsus in omnibus.” The rule then of the courts, in applying this maxim, was to instruct the jury that if they found the witness had sworn falsely in one material thing, they should pronounce him false in. his whole testimony, and utterly disregard it. But the present rule in applying the maxim is, that if they find the witness has sworn falsely in one matter, they may (not shall) disregard his whole testimony. At the present time, it is a matter which the jury weigh; but in former times it was fixed as a matter of law. But later, and after the repeal of the statute referred to, the Court of Appeals of New York repudiated that doctrine by holding that a witness was competent notwithstanding his crime, and the sufficiency or weight of his testimony was for the jury, and not the court, to decide. [People v. Chaplean, 121 N. Y. l. c. 276.]

The case of Commonwealth v. Douglass, 5 Met. 241, is frequently cited by text-writers as upholding the rule that corroboration is required with reference to proof of the perjury committed by the suborned witness. But in that case the point was not before the court. The trial court had instructed the jury that corroboration was necessary to prove the element of perjury, but had failed to instruct that corroboration was necessary to prove the act of suborning. The appellate court ruled that corroboration was not necessary with reference to proof of the suborning act.

In the case of State v. Waddle, 100 Iowa, 57, this point is not involved. That case was based on a statute making it a crime to incite or procure another to commit perjury, though no perjury was committed. In other words, it was for an attempt at subornation. It was not necessary that the perjury should have been committed, and it was not charged in the information that perjury had been committed. The case is, however, analogous in that it holds that the crime charged could be proved by a single witness, uncorroborated.

In State v. Renswick, 85 Minn. 19, it was held that in a prosecution for subornation of perjury, where it is sought to establish by the person suborned the fact that perjury was committed, his testimony must be corroborated as to such fact. At first glance, this case appears to be in point and against the conclusion which we have readied above, but on closer examination it cannot be said to he in point here. The decision is -controlled by statutory enactments of Minnesota, as is apparent from the following quotation from the opinion in that case:

“As to the first element of the crime, the suborned and the suborner are principals by virtue of the statute (section 6310), and necessarily each is the accomplice of the other; hence this element of the crime cannot be established by the uncorroborated evidence of the suborned (section 5767). But as to the second element of the crime, the suborned is neither a principal nor an accomplice, for legally he cannot be guilty of persuading himself to commit perjury. An indictment of a party for inducing himself to commit a crime would be a legal absurdity.”

In the case of Boren v. United States, 144 Fed. 801, the question as to instructions is not involved, but the question is raised by urging the insufficiency of the evidence to sustain the verdict in a case of subornation of perjury, on the ground that the proof of each count was made by a single witness. The court, while not basing its decision on the absolute ground that corroboration is unnecessary, yet in discussing the rule as to corroboration, uses the following language :

“It is true that under indictments for perjury the generally accepted rule is that the accused cannot be convicted on the uncorroborated testimony of a single witness. The reason assigned is that the same effect is to be given to the testimony of the party accused as to that of the accusing witness, and the proof would be merely the oath of one person against that of another. The reason of the rule in the form in which it is expressed does not apply to a case of subornation of perjury such as the present case, for the reason that here the testimony does not consist of the oath of one person against that of another. The testimony of each witness for the government involves, it is true, the impeachment of his own former sworn statement, but it is direct evidence against the accused as to his instigation of the perjury.”

The rule is stated in 30 Cyc. 1454 (b), as follows: “The rule that under an indictment for perjury defendant cannot be convicted on the uncorroborated testimony of a single witness is not applicable to a case of subornation of perjury.”

IY. In the motion in arrest of judgment defendant attacks the sufficiency of the information, claiming that it fails to charge that defendant knew that witness Harris would swear falsely. The information, after sufficiently alleging perjury committed by Byrd D. Harris, charges “that one William E. Richardson, before the committing of the wilful, felonious, false, malicious, known and corrupt perjury aforesaid, on or about the 12th day of October, 1911, at the city of St. Louis aforesaid, him, the said Byrd D. Harris, wilfully, feloniously, maliciously, falsely and corruptly did persuade, incite, procure and suborn the said wilful and corrupt perjury, in the maimer and form aforesaid, to do and commit, against the. peace and dignity of the State.”

While the information does not in express words say the defendant knew the said Harris would swear falsely, yet the words “wilfully, feloniously, maliciously, falsely and corruptly,-” undoubtedly import such intent and knowledge, and the information sufficiently charges the scienter.

The Supreme-Court of Massachusetts, in passing upon this question in the case of Commonwealth v. Devine, 155 Mass. 224, uses the following language:

“The defendant further objects that the indictment does not allege that Catherine Heaney testified falsely, or that the defendant knowingly procured her to do so. The allegations were, in substance, that she wilfully and corruptly testified that she did not do certain things that were set out, whereas she then and there well knew that she did do those things, and that the defendant did feloniously and maliciously incite her to commit perjury in the manner and form aforesaid. This sufficiently avers that she testified falsely; and the words 'feloniously and maliciously’ import that the defendant knowingly procured the perjury.”

To the same effect is the case of Stewart v. State, 22 Ohio St. 477, also Kelley’s Crim. Law and Prac. [2 Ed.], sec. 833. In fact, to-hold otherwise would be to ignore the well known meaning of words in daily use.

Y. Defendant next complains that the verdict is insufficient in law because it is a general verdict and does not determine which assignment of perjury the defendant was found guilty of suborning the witness to commit.

While the information specified several false and perjured statements made by the witness Harris while testifying under oath in the assault case, and further charged that the defendant had suborned all of said perjured testimony, yet the information charged but one offense. Where the information charges but one offense, a general verdict in form is sufficient. [State v. Ray, 53 Mo. 345; State v. Martin, 230 Mo. l. c. 692; State v. Stark, 202 Mo. 210; State v. Bishop, 231 Mo. l. c. 415; State v. Gordon, 196 Mo. 185; State v. Shour, 196 Mo. 202.] The judgment is affirmed.

Roy, G., not sitting.

PER CURIAM. — The foregoing opinion of Williams, 0., is adopted as the opinion of the court.

All the judges concur.


author: BOND, J.

text:
    JOHN E. CONREY v. MARY B. PRATT et al., Appellants.
    Division One,
    March 15, 1913.
    1. APPELLATE JURISDICTION: Suit to Foreclose Mortgage. Where the defense to a suit to foreclose a deed of trust is that it was procured by fraud, and the answer seeks to have it annulled for that reason, the title to land is directly put in issue, and the appellate jurisdiction is exclusively vested in the Supreme Court.
    2. MARRIED WOMAN: Conveyance of After Acquired Property. Under the statute in force on May 12, 1904 (Sec. 901, R. S. 1899), a deed of trust signed by a married woman and her husband, given to secure the payment of a note signed by both, upon land which neither owned at the time, did not operate to convey her interest acquired by purchase from the real owner after her husband’s death.
    3. -: -: Effect of Married Woman’s Act. The Married Woman’s Act of 1889, giving to a married woman many rights of a feme sole, did not take away from her the protection as to covenants in the conveyance of her lands afforded by section 901 prior to its amendment in 1905.
    4. WITNESS: Competency: One Party Dead: Called by Other Side. The statute disabling a witness from testifying under certain circumstances where the other party to the cause of action, or contract is dead, was intended to exclude such person as a witness on bis own behalf or on tbat of those in privity with him against the objection of the adverse party. If Ms testimony is not objected to, or if be is called by tbe other- party, the statute has no application.
    Appeal from Lawrence Circuit Court. — Hon. F. C. Johnston. Judge.
    Reversed and remanded.

      Mayhew, Sater & Gardner for appellant.
    (1) Defendant could call plaintiff and make Mm her witness.. Plaintiff Conrey could not object to this testimony because Pratt was dead. This right belonged to Mrs. Pratt and she saw fit to waive that right, make Conrey her witness, and the court erred in striking out his testimony, as Conrey’s testimony shows he was present when the notary stated to Mrs.Pratt that they were not taking a deed of trust but merely a lien on the building, as shown by testimony of Mrs. Pratt and testimony of Conrey.- Yandergriff v. Swinney, 158 Mo. 527; Nugent v. Curran, 77 Mo. 323. (2) There is evidence on behalf of defendant of representations made to her by the notary in the presence of plaintiff. Plaintiff himself testified he was present.' This should have been submitted to the jury.. Claflin v. Rosenberg, 42 Mo. 439; Schoof v. Fries, 90 Mo. App. 111. (3) No covenant in any deed to property belonging to the husband shall bind the wife, except so far as may be necessary to actually convey her interest therein. R. S. 1909, sec. 2788. A deed made by a married woman does not convey her after acquired interest in the land where she signs as wife. Hendricks v. Musgrove, 183 Mo. 300. The word deed as used in the above statutes included also mortgages and deeds of trust. Parsons v. Dennis, 7 Fed. 317.

      Charles L. Henson for respondent.
    (1) Where a married woman executes a deed of trust to land to which she has no title and she thereafter acquires the title, such after acquired title will inure to the benefit of the grantee in the deed of trust so executed. Ivy v. Yancey, 129 Mo. 501; Hafner v. St. Louis, 161 Mo. 34; Barker v. Circle, 60 Mo. 258. No such inurement against a married woman when the transaction was prior to the passage of the Married Women’s Act of 1889 and while under coverture. Bland v. Windsor, 187 Mo. 108; Hendricks v. Mus-grove, 183 Mo. 300. (2) “Where a grantor, by the terms of his deed, undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed, but shall afterward acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance.” Sec. 2871, B. S. 1909; Fordyce v. Bapp, 131 Mo. 354; Johnson v. Johnson, 170 Mo. 34; Marston v. Catterlin, 239 Mo. 390. (3) “A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to 'sue and be sued, to enforce and have enforced against her property such judgments as may be rendered for or against her and may sue and be sued at law or in equity, with or without her husband being joined as a party,” etc. Sec. 8304, B. S. 1909. (a) The disabilities of married women at common law have been removed by the foregoing section and she may convey her real estate without her husband joining therein. Bank v. Hageluken, 165 Mo. 443; Evans v. Morris, 234 Mo. 177; Glasscock v. Glasscock, 217 Mo. 362. (b) And may contract with her husband as effectually as if such disabilities never existed. Bice-Stix v. Sally, 176 Mo. 177; O’Day v. Meadows, 194 Mo. 588. (c) And in her husband’s action against her in replevin she may recover judgment against him, if entitled to the property. Beagles v. Beagles, 95 Mo. App. 338. ' (d) And she may authorize an agent to contract a sale of her land and may ratify the act of the agent in so doing and her ratification will relate back and be the equivalent of a prior authority. Kirkpatrick v. Pease, 202 Mo. 471. (4) Under statutes of other States similar to ours it has been held that the subsequently acquired title of , a married woman will inure to her grantee in a deed of trust. Cooper v. Burns, 133 Fed. 398, 140 Fed. 273; George v. Brandon, 214 Pa. 623; Bruce v. Goodbar. 104 Tenn. 638; B. & L. Assn., 50 S. C. 459.
    STATEMENT BY THE COURT.
    The petition filed to the March term, 1909, of the circuit court of Lawrence county, alleges that on May 12, 1904, the defendant Mary B. Pratt, with her husband, C. N. Pratt, then living, but dead at the time of the filing of this suit, executed the following promissory note:
    $63.07 Monett, Mo., May 12, 1904.
    Thirty-five days after date we promise to pay to the order of John E. Conrey sixty-three and 7-100 dollars at the rate of 8 per cent per annum from date. Value received.
    C. N. Pbatt.
    Mart B. Pratt.
    That to secure the payment thereof she joined her husband in a deed of trust of the same date on two acres of land, except sixteen feet reserved on the west side for a public road; that the debt and interest evidenced by said note thus secured are wholly unpaid; that defendant, Mary B. Pratt, is the actual tenant and occupier of said real estate described in the trust deed. Defendant then prays judgment for the amount due and for the sale of the real estate to satisfy such-judgment, and that all equity of redemption in the defendant be foreclosed, and for general relief.
    The answer of defendant Mary B. Pratt admits that her husband, C. N. Pratt, now deceased, signed a certain promissory note, as in plaintiff’s petition alleged, and states that she signed the same as surety; that she was moved by the fraudulent misrepresentation of plaintiff as to its contents to join her husband in a deed of trust to secure said note; that the false statement on which she relied was, that the deed of trust did not involve the land but was only a chattel mortgage for some improvements located on said land; that plaintiff well knew that neither defendant nor her husband had any title to the land described in his petition; that the title to said land then and for a long time prior, was vested in one H. S. Zenor, who lived in St. Louis county, Missouri; that on the first day of June, 1907, her husband, C. N. Pratt, died without any title to said land; that after the death of defendant’s husband and about four years after the said deed of trust and note had been given, she received from a fraternal insurance organization the sum of $2000; that with part of said money she bought the premises described in plaintiff’s petition, and received a warranty deed therefor on the third day of July, 1907, and never had any title to it prior to that date; that the note given by her husband to plaintiff and signed by herself, as above stated, was without consideration, wherefore she prayed the note and deed of trust be set aside and for naught held.
    The reply admitted that the defendant, Mary B. Pratt, did not have tbe legal title to the land when she became a party to the note of her husband to plaintiff, and that she did acquire the land as stated in her answer; denied that she was the surety of her husband on the note given to the plaintiff; and denied that she was misled or deceived in the matter of executing the deed of trust; and prayed.for judgment as in the petition.
    To support the affirmative defense set up in her answer, the defendant gave evidence that herself and husband were parties to a former note and deed of trust given to plaintiff, which was drawn up and prepared for their signatures by plaintiff’s attorney (one Maher) who was also a notary public ;'that at the time of the execution of that instrument defendant Mary B. Pratt observed that it embraced land and refused to sign it on that account. She states that the said Maher “took particular pains to explain to me that it did not involve land in any way whatever — it was to only cover the building on it.” She was then asked the following questions: “Q. That is when you signed this? A. Yes, sir. Q. This deed of trust? A. Yes, sir. Q. The explanation you have given there was the inducement to you to sign it? A. Yes, sir.” These answers were stricken out by the court over defendant’s objection and exception at the time. She thereupon called the plaintiff to testify, who admitted that Maher was his brother-in-law and had been employed by him to draw up the instrument executed by defendant and her husband, and also a former chattel mortgage; but stated he had never given Maher any authority to make representations in his behalf, and that he (plaintiff) was present when both instruments were drawn up.
    On the request of plaintiff’s attorney, and over the objection and exception of the defendant, the court struck out the testimony of plaintiff, although the record shows the plaintiff admitted he had employed Maher to draw the former chattel mortgage and deed of trust, and that he. was present at the time when he (Maher) procured the signature of defendant to both instruments. Defendant sought to prove by the plaintiff that at the time he took the deed of trust described in his petition he knew the defendant had no interest in the land. This the court refused, but permitted him to testify that he was present when the deed of trust was executed, and that the deed of trust in suit was taken in lieu of a note secured by a former deed of trust and acknowledged before Maher. The court, however, seems (the record is not clear) to have stricken ont this testimony over the objection and exception of .defendant.
    At the conclusion of the evidence the trial court, over the objection and exception at the time of defendant, gave a peremptory instruction requiring the jury to find the issues in favor of plaintiff for the amount of the note set up in his petition and interest to date at eight per cent, and upon the return of a verdict in accordance, rendered a decree ordering the sale of the land of defendant to pay and satisfy same, and barring and foreclosing all right, title, or equity of redemption in and to said land and improvements, and each and every part thereof; and provided that the purchaser should be let into the possession by writ of restitution if necessary; and provided further for an execution for the entire judgment or any sum remaining unpaid after applying such proceeds of sale to such judgment as herein directed, and that execution may issue to enforce this judgment and. decree in all its parts.
    Defendant duly perfected her appeal to this court.
   OPINION.

I.

BOND, J.

(After stating the facts as above).— Respondent’s brief suggests a question of our jurisdiction to determine this appeal. - Where a deed of trust is alleged to have been procured by fraud and is sought to be annulled for that reason —which is the defense made in this case — ■ the title.to land is put in issue directly, and the appellate jurisdiction is exclusively vested in this court by the Constitution. [Vandeventer v. Bank, 232 Mo. l. c. 625; Loewenstein v. Insurance Co., 227 Mo. 100.] The appeal, therefore, was rightfully taken.

The equitable defense set out in the answer, coupled with the prayer for affirmative relief, converted this into an equitable action which the court might have tried without the aid of a jury. [Wolff v. Ward, 104 Mo. l. c. 146; Trust Co. v. McDonald, 146 Mo. l. c. 479.]

11.

The decisive question as to so much of th¿ decree as adjudged that the title of defendant passed under the deed of trust exhibited with plaintiff’s petition and directing a foreclosure thereof, is whether, under the statutes and decisions of Missouri, the fee simple title which defendant acquired about four years after her joinder deed °f trust, inured by operation of law to the trustee therein and for the purposes thereof; although at the time of its execution both plaintiff and defendant had actual knowledge that no such title was then vested in defendant and could not have been intended to be conveyed, and that she was a married woman.

The common law doctrine on this subject and its origin and basis are discussed with clearness and logic as declared in the American decisions, in a work of much authority. [Rawle on Covenants for Title (5 Ed.), chap. 11, and especially sections 264 and 265.] In Missouri, however, the law governing this subject is embodied in statutes and our interpretative decisions. The general applicatory statute is, to-wit:

“Where a grantor, by the terms of his deed, undertakes to convey, to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed, but shall afterward acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance.” [R. S. 1909, sec. 2871, Gr. S. 1865, p. 442, sec. 3, as amended from R. S. 1855, p. 355, sec. 3; Hendricks v. Musgrove, 183 Mo. l. c. 309; Wilson v. Fisher, 172 Mo. l. c. 15 et seq.; Ford v. Unity Church Society, 120 Mo. 498; Brawford v. Wolfe, 103 Mo. 391; State National Bank of St. Joseph v. Robidoux, 57 Mo. l. c. 450.]

The foregoing decisions except from the operation of the above statute all deeds not strictly within its terms. In the first case, supra, it was held that a married woman’s deed purporting to convey the fee and executed prior to the passage of the Married Woman’s Act of 1889 would not transfer property acquired by her subsequent to the'making of the deed — this being the fact in that case.

In the second case cited, it was ruled that a sheriff’s deed will not pass an after-acquired title of the defendant in the execution, since such a deed is only a conduit of the interest and estate of the defendant' at the time of the execution sale.

In the third case cited above, it was ruled that the foregoing statute would not operate to transfer a subsequently-acquired fee simple title of the grantor to a voluntary grantee, where it was shown the grantor made a second conveyance to a purchaser without actual notice, although the first deed appeared of record. That case contained a review of the antecedent cases construing the above statute and held arguendo that neither under that statute nor at common law could the doctrine of inurement be applied to the deed of a married woman, which it was held only operated to pass all her existing right, title and.interest; and cited in support of this statement the other cases cited above.

In the fourth case cited above, the widow of an intestate, who died childless, remarried, and with her second husband executed a deed of general warranty to the lands left by her first husband. At the time of the making of this deed no dower had been assigned the widow. For some reason administration was not had upon his estate for several years. After it was taken out, the widow elected in due time, in writing, to take one-half of the real estate in lieu of dower. The question was whether this subsequently acquired title and estate of the widow passed by inurement under the deed made by her and her second husband, whereby she undertook to convey an indefeasible estate in fee simple to the land. In solving that question the court called attention to the statutory provision with reference to the power of a husband and wife to convey the real estate of the- wife, which has been a part of the law of this State and included in all the revisions of the statutes from 1879 to 1899, inclusive, in which latter revision it was section 901, and which continued in full force until it was substituted by the Act of 1905. [Laws 1905, p. 94; R. S. 1909, sec. 2788.] The former act was in full force and effect and'governed the’rights and powers of parties to the deed of trust sought to be enforced in the case at bar, which was executed on the 12th day of May, 1904. The old act contained the following clause in reference to the conveyance of real estate of a married woman: “But no covenant expressed or implied in such deed shall bind the wife or the 'heirs, except so far as may be necessary effectually to convey from her and her heirs all right, title and interest expressed to be conveyed therein.” [R. S. 1899, sec. 901.] The court construed this statute during its existence to intend that the deed of a married woman simply conveyed “from her and her heirs all her right, title and interest in the land at the time the deed was made;” that it had no other effect than a quit-claim of her “existing right, title and interest.” And, hence, fell within the logic of the rule that there was no inurement of after-acquired title or estate under a quit-claim deed. [Brawford v. Wolfe, 103 Mo., supra, l. c. 397-398.]

In the case last cited above the same construetion. 'of the above quoted language of the old statute was made by Judge Napton, where he held that the deed in fee of a married woman and her husband containing statutory warranties did not make the wife responsible on those covenants with reference to land which she did not own at the time of such joint conveyance.

Under the authority of these cases and the statute in force at the time of the execution of the trust deed by appellant and her husband, our conclusion is that no other estate or interest in the land in question passed than that vested in her at the time; and as she did not then have any right or interest in the land described in said trust deed, nothing passed thereunder, and that the estate which she acquired four years thereafter was not divested when it came into being under the doctrine of inurement, either at common law or our statute declaratory thereof. [Supra.]

Whatever may be the powers of a married woman under the Act of 1889, they were not such as to create a liability against her contrary to the express provisions of the statute (R. S. 1899, sec. 901) in existence at the time of the Married Woman’s Act.

We are not'impressed with the argument of counsel for respondent, that the act giving married women many of the rights of femme sole was intended to take away from her the protection as to covenants in the conveyances of her land afforded by the former statute (R. S. 1899, sec. 901) prior to its repeal in 1905.

It follows that so much of the judgment of the trial court as undertook to establish and enforce the lien of the alleged deed of trust on the land described in this record was erroneous, and must be vacated.

HI.

Other errors are assigned by appellant. One of these relates to the rulings of the trial court as to competency of the plaintiff as a witness. The court vacillated in its rulings on this point. The statute disabling a witness to testify under certain circumstances where the other party to the cause of action or contract is dead, was intended to exclude such persons as a witness on his own behalf or those in privity with him against the objection of the adverse party. If his testimony is not objected to or he is called by the other side, the statute has no application, and his testimony must be judged as to competency like that of any other witness.

The judgment in this case is reversed and the cause remanded for disposition according to this opinion.

Woodson, P. J., Lamm and Graves, JJ., concur.


author: WOODSON, J.

text:
    LOIS MODLAGL, Appellant, v. KAYSING IRON & FOUNDRY COMPANY.
    Division One,
    March 15, 1913.
    1. NEGLIGENCE: Instruction: Blacksmith: Duty to Repair Tools. It was the duty of a blacksmith, of thirty-five years’ experience, employed as such in an iron foundry, in the absence of an agreement or rule to the contrary, to repair and keep in order the chisel with which he was injured and which he was holding against a rivet in a boiler while it was being struck by another employee, although he had been especially assigned to that work. The master may entrust to his servant the performance of the intermediate, ordinary and simple duties incidental to the servant’s employment and resting in the servant’s knowledge and skill.
    2. -: -: -: -: No Evidence. To instruct on a proposition which there is no evidence to support, is erroneous; hut where it was plaintiff’s duty to repair the chisel before using it, it was harmless error to instruct the jury that plaintiff could not recover if the chisel was defective and was allowed to become so by him, although there is no evidence that he caused or permitted it to become defective.
    3.' -: -: -: -: Selecting Others. Whether or not there were other chisels of the character of the one which injured plaintiff in the box from which he or a fellow-servant made the selection, is immaterial, where it was his duty to repair the chisel before using it, if he thought those in the box were not reasonably safe.
    -: Fellow-servant: Question of Law: Submitted to Jury. To submit to the jury at defendant’s request the question whether another blacksmith was a fellow-servant of plaintiff blacksmith, where the uneontradicted evidence is that they were fellow-servants, is error, but error of which plaintiff cannot complain, because in his favor.
    5. -: Verdict: Based on Conjecture. Where the evidence tends no more to show that the small particle of steel that flew into plaintiff’s eye came from the chisel he was holding in his hand than from the rivet in a boiler upon which the chisel rested when it was hit by a fellow-servant, a verdict for defendant is proper, where plaintiff’s petition charged that it came from the chisel.
    Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Affirmed.

      Watts, Gentry & Lee and William L. Bohnenkamp' for appellant.

      Ellerbe S Brokaw for respondent.
   WOODSON, J.

The plaintiff instituted this suit in the circuit court of the city of St. Louis, against the defendant to recover $15,000 damages for personal injuries sustained by him through the alleged negligence of the latter.

A trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the defendant, and in proper time and due form the plaintiff appealed the cause to this court.

The petition was as follows (formal parts omitted) :

“Plaintiff states that the defendant is and was at the times hereinafter mentioned a corporation duly organized under the laws of the State of Missouri, and, as such, engaged in the business of conduct an iron foundry.
“Plaintiff further states that on or about the 8th day of June, 1909, lie was in the employ of the defendant as its servant and was on said date directed by the foreman of defendant, who had authority from the defendant to control the actions of the plaintiff and to give him orders as to the work which he was required by defendant to do, to assist a fellow-servant by the name of Rudolph Heerich in cutting off certain nuts and rivet heads from the side of an iron steel beam; that the said fellow-servant was using a sledge hammer, and it became necessary for the plaintiff to use a heavy chisel, which plaintiff would place upon the nuts and rivet heads which it was desired to remove and upon which chisel the said fellow-servant of plaintiff would strike heavy blows with a sledge hammer. Plaintiff further states that on said occasion defendant negligently and carelessly furnished to plaintiff for use in said work a certain steel chisel which was not reasonably safe for use for said purpose in this, to-wit, that said chisel was old and badly worn down from long use and from the heavy licks that had long been applied to it, and the top of said chisel was worn, cracked, rough and scaly and the edges of the top thereof were uneven, worn and jagged, all of which made said chisel unreasonably unsafe for the purposes for which it was intended to be used, because of danger of pieces of the top of said chisel breaking off when it was struck heavy licks with the sledge hammer, as it was necessary that it should be struck when used for said purpose. Plaintiff further states that the condition of said chisel above referred to and the danger incident to the use thereof for such purposes were-well known to the defendant, or by the exercise of ordinary care on its part would have been known to it, before' it furnished-said chisel to plaintiff on said occasion.
“Plaintiff further states that while attempting to use said chisel for said purpose and while he was holding to the wooden handle which was inserted through the hole near the top of said chisel, his said fellow-servant Rudolph Heerich struck said chisel a violent blow with the sledge hammer, as his duty required Mm to do in order to break off a certain nut or rivet head, and that as a result of the said defective condition of said chisel, when it was so struck, a small piece broke off of the top of said chisel and flew into the plaintiff’s left eye, inflicting serious injury thereto, so that it became necessary for plaintiff to have the eyeball of Ms said left entirely removed.
“Plaintiff further states that as a result of his said injury to his eye he was obliged to go to a hospital and to receive medical and surgical treatment for' a ]ong time', was confined to his bed, has suffered and will suffer great pain of body and mind, has entirely lost the sight of his left eye, has incurred and will incur large expenses for the services of physicians and surgeons, for care and attendance at the hospital, for medicines and for artificial eye, and has lost and will lose the earnings of his work and labor, and as result of the injury to and removal of his left eye the sight of his right eye has also been impaired.
“Wherefore, plaintiff says he is damaged in the sum of fifteen thousand dollars, for which sum he prays judgment against defendant, together with the costs of this 'cause.”

The amended answer was as follows:

“Comes now the defendant in the above ■ styled cause and in answer to the plaintiff’s petition filed herein denies each and every allegation therein contained.
“Further answering defendant states that plaintiff’s injury, if any, was directly caused by his own negligence and carelessness and the negligence and carelessness of his fellow-servant, in this, that plaintiff and the said fellow-servant, or either of them, carelessly and negligently selected and took for his own use from among a pile of reasonably safe cMsels and took a chisel or tool which if unsafe plaintiff knew . or by the exercise of ordinary care could have known .was unsafe.
“Defendant further states that plaintiff was employed by defendant as a blacksmith and toolsmith; that it was his duty as such blacksmith and toolsmith to make, repair and put in reasonably safe condition all tools used by himself and other wprkmen of the defendant before they were used by himself or other employees of defendant; that plaintiff at the time of the accident alleged in said petition continued to use a tool which, if unsafe, he knew, or by the exercise of ordinary care could have known, was in an unreasonably safe condition; that said tool could have been repaired and made reasonably safe, but plaintiff carelessly and negligently continued to use the said tool without first having repaired the same. Defendant further alleges that if the small piece of steel mentioned in plaintiff’s petition broke off from the chisel then being used by plaintiff, it was caused to break off and fly therefrom by the negligence and careless manner in which plaintiff held said chisel and by the negligent and careless manner in which plaintiff’s fellow-servant struck the same with the sledge or hammer mentioned in plaintiff’s petition; that said chisel was so held and said hammer was so swung that said chisel was struck or hit a glancing or slanting blow on the top thereof, thereby causing a piece of same to break; that had said chisel been struck directly on the top thereof said piece would not have been caused to break off and fly away from-said chise.1.
“For another and further defense defendant states that at the time of plaintiff’s injury' plaintiff was engaged in cutting rivet heads or bolts from iron cross beams; that in cutting said rivet heads or bolts small pieces or particles of steel are necessarily cáused to break away from and fly from said rivet heads, chisel or sledge; that the danger of being struck therefrom is incident to and a part of plaintiff’s work and was understood and known by plaintiff, and that plaintiff in Ms work as a blacksmith for defendant assumed. the risk of injury from such flying particles.
“Wherefore having fully answered, defendant prays to be hence dismissed with its costs.”

The evidence for the plaintiff tended to show that he was a Hungarian and came to this country in the year 1907, could not speak the English language, and testified in the case through an interpreter. That he was a blacksmith and toolsmith by trade, having learned the trade in Europe and had followed that occupation about thirty-five years.

The defendant was engaged in the foundry business, employing some sixteen or eighteen men; and in connection therewith it ran a blacksmith shop in which two men were generally employed.

On June 1,1909, the plaintiff was employed by the defendant as a blacksmith and toolsmith, and put to work in said blacksmith shop with one Robert Schuler, also a blacksmith and toolsmith.

That the defendant had a foreman by the name of John Hodecker, who had charge and control of all the men, both in the foundry and the blacksmith shop. That the foreman employed the plaintiff for the defendant, and frequently during each day, would give him orders as to work he wished him to do. That as soon as plaintiff would complete one job of work he would report to the foreman, and he would give him orders as to what he wished Mm to do next. In other words, the forepian gave him separate orders for each piece of work he did.

That Schuler was a fellow-servant, and had been employed i-n the shop much longer than plaintiff and had more regular duties to perform.

The plaintiff was called upon but a few times to make and temper tools, but did so whenever requested to so do. That the foreman never told him that such work was to be a part of his regular duties, nor did he tell him that it would not be.

That after working two or three days and after making four or five new chisels, he was, by the foreman, ordered to take some old chisels and chippers and temper and repair them, but that the chisel which subsequently caused his injury was not one of those.

That three or four days after tempering said chisels and chippers, the foreman ordered the plaintiff to go out into the yard and cut or chip off some rivet heads or bolts from plates fastened on the side of a steel beam. One Heerich was assigned to assist plaintiff in that work.

That the plaintiff picked up a chisel some five inches long with an eye in which was inserted a wooden handle, carried it out into the yard and began said work. That he held the chisel on the rivet head by means of the handle, while Heerich struck the chisel with a sledge hammer. That they progressed slowly with said work on account of the shape of the chisel they were using, and for that reason the plaintiff of his own volition returned to the shop for another chisel, approached the bench where Schuler was at work and where the chisels and other tools were kept by defendant for use.

That he asked Schuler if he had some other tool with which to cut off the heads of said rivets; that Schuler looked under the bench, selected a chisel known as a chipper and handed it to the plaintiff for his use. The plaintiff accepted the chisel without complaint, returned to the yard and began work with the chisel, assuming, as he said, without looking to see, that it was suitable and reasonably safe for the purpose.

That shortly after resuming work and just after Heerich struck the chisel, the plaintiff felt a pain in his eye. Thereupon he stopped work temporarily and went into the shop and requested some man there to-see if there was not something in his eye; finding nothing plaintiff returned to work and continued to labor until twelve o’clock; and after lunch he resumed work, but was shortly thereafter compelled to go home. He suffered considerably with his eye that night, but returned to work the next morning and worked a half a day, when he quit again and went to the hospital for treatment, where it was discovered that a piece of metal had penetrated his eyeball.

The sight of that eye was not only lost, but the eyeball had to be removed. The plaintiff also suffered pain in his other eye, which is also weakened from sympathy with the injured eye.

The chisel which it is claimed caused the injury, was of the proper type for the purpose of cutting off the heads of said bolts or rivets; that is not questioned by either party, and that it was the only one of that kind about the shop of which the plaintiff had any knowledge.

Plaintiff testified that the chisel introduced in evidence and filed as an exhibit in this court, is the one which caused his injury, while the oral testimony below and a physical examination thereof by this court show that the head thereof is all battered down, jagged at the edges, scaly and cracked, clearly indicating long and severe use.

The evidence failed to show whether or not the chisel introduced in evidence was any better or worse than the others which were on hand and in the shop at the time Schuler handed this one to plaintiff.

The evidence for plaintiff tended to show, which is a well known fact, that the blade of the chisel is hardened steel, made so as to cut metal without dulling the same, and that the head thereof is made soft and maleable so as to prevent breaking and pieces from flying therefrom when being struck with a sledge or other heavy metal instrument.

The evidence for the defendant tended to show that all fools, including the chisels and clippers mentioned in the evidence, were made in the blacksmith shop of the defendant; and that the steel of which they were made was of the very best quality of tool steel that could be procured.

That the ordinary and general duties of a blacksmith are to make, temper and repair any and all kinds of tools and implements, including the chisels and chippers mentioned in evidence, which are used in and out of a blacksmith shop.

That the tools of the shop were stored in proper and convenient places in and about the premises, and that each and all the blacksmiths employed therein had access thereto, and that each and all of them selected for himself or themselves, any or all of said tools and used them as the occasion might require, or as his or their judgment might dictate was suitable and necessary in the proper performance of his or their duties to the employer.

That the duties of the plaintiff were the same as those of any ordinary blacksmith; and that he was under the charge and control of the foreman, and performed such services from time to time as he was ordered by the foreman.

That there was a pile of chisels, chippers or rivet busters, as they were variously called, in the shop, in a good state of repair, from which Schuler selected the one it is claimed caused the plaintiff’s injury'; and if I correctly understand the record, some of them were those previously made, tempered or repaired by plaintiff; but that point is not made clear by the record — fairly inferable, however, therefrom, if I correctly understand the evidence.

Such additional evidence introduced as may be necessary for a proper understanding of the legal propositions presented, will be stated in connection therewith.

Counsel for appellant assign but two errors, and they grow out of the action of the trial court in giving instructions numbered five and six in behalf of the defendant.

Those instructions are as follows:

“5. The court instructs the jury that if they believe from the evidence in this case that it was the plaintiff’s duty as a blacksmith in the employ of the defendant to repair and keep in order tools used by him in work performed by him, and if you further believe from the evidence that the tool used by plaintiff at the time of his accident was defective and was allowed to become so by plaintiff, or if you find that plaintiff negligently and carelessly failed to repair and trim said tool, if you find that it could have been repaired and trimmed, then the plaintiff is not entitled to recover and your verdict must be for the defendant.
“6. The court instructs the jury that if you find from the evidence in this case that the chisel used by plaintiff at the time of the accident was either selected by himself or by the blacksmith, Robert Schuler, mentioned in the evidence, from a supply of chisels, some of which were reasonably safe for use in the work in which plaintiff was engaged, and if you further find that the. chisel was selected by the said Robert Schuler and that said Robert Schuler was a fellow-servant of the plaintiff and not a vice-principal of the master, then your verdict should be for the defendant.”

I. Counsel for appellant challenge the correctness of instruction numbered five in the following language.

“(a) Because it permits the jury, without any evidence authorizing such a finding, to find that it was a part of the plaintiff’s duty as a blacksmith in the employ of the defendant, to repair and keep in order tools used by him. The undisputed evidence is that plaintiff’s only instructions to keep the tools in order were instructions given on a certain day, when he had been in defendant’s employ four or five days, relating to certain particular chisels which were repaired by him on that day, and which did not include the tool by which he was injured and that never was he directed to repair or keep in order any other tools of the defendant.
“ (b) The instruction is further erroneous in permitting the jury to find that the defective chisel which injured plaintiff was allowed to become defective by plaintiff. There is no evidence that plaintiff ever saw that tool before the moment when he got it from Schuler, nor that he ever had it placed in his care, or been ordered, either specially or generally, to keep it in good condition.
“(c) The same is true as to the next clause of the instruction, which permits a finding that the plaintiff negligently and carelessly failed to repair and trim said tool.”

We will consider these alleged errors in the order stated.

(1) The first objection urged to this instruction is in our opinion wholly untenable.

There was an abundance of evidence upon which to predicate that part of the instruction which authorized the jury to find that it was a part of the plaintiff’s duty as a blacksmith to repair and keep in order the tools with which he worked.

The record shows, without contradiction, that the plaintiff was a blacksmith with thirty-five years experience, and that he was employed by defendant as a blacksmith, to perform the ordinary duties of such, which everyone knows is to make, temper and repair all kinds of tools when broken and out of repair, and to repair all kinds of implements and machinery used within and without a blacksmith shop. All mechanics, machinists, farmers and all others who have and use tools, implements and machinery, which are broken or otherwise get out of condition, take them to the blacksmith for repair. This is not only a daily, but an hourly, and I might add, a continuous occurrence. That being unquestionably true, it would be unreasonable to hold that it was no part of the blacksmith’s duty to repair his tools, etc., especially when there is no other class of persons under the sun who do that class of work.

A ruling to the contrary would be like holding that it is no part of a mechanic’s duty to sharpen his tools, or that the study of the law is no part of the duty of a lawyer.

Not only that, plaintiff testified that he did make some of these chisels and tempered others, on the second or third day after he began 'to work for the defendant ; but he seeks to escape the legal effect of that evidence by testifying that he did that work under the special order and direction of defendant’s foreman. Suppose that is true, it was none the less a part of his duty to so do, just as it was his duty to do any and all the other things he did under the so called special orders of the foreman. And in this connection it should be borne in mind that plaintiff does not contend that he was not employed to do general work in the blacksmith shop, which of course includes the making, tempering and repairing of tools, but insists- that as a matter of fact he did no general work, but only such work as was specially assigned to him.

Should it be conceded that such was the case, still that fact would not change the character of his general employment, for the simple reason that under a general employment the master has the legal right to direct his employees to do any and all things that are embraced within the scope of the general employment.

In fact, that is usually what is done, the reason being, as previously stated, that the master has the right to conduct his own business in his own way and to determine what matters shall be done first, and by whom; and he is under no legal obligation to permit the employee to select the kind of work he will do, or the time when he will do it.

It should also he borne in mind that there is not a word of evidence in this record which tends to show that the defendant agreed to repair any of the tools with which the plaintiff was to work, or in any manner relieve the plaintiff of that simple duty which the law imposes upon him.

That duty of the employee is based upon the well known rule of law which is to the effect that the master may trust the servants to perform the intermediate, ordinary and simple duties incidental to the servant’s employment and resting upon the servant’s knowledge and skill.

Lamm, J., in speaking for this court, in the case of Forbes v. Dunnavant, 198 Mo. 193, l. c. 209, well stated this rule in the following language:

“By this view, we start with the postulate that a servant is presumed to possess, not only common sense, but certain knowledge peculiar to his trade, or art. The master may be presumed to hire, not only the bodily services of the servant (his hands, eyes, ears, muscles and'legs), but the skill and knowledge pertaining to the servant’s art or trade and possessed by the latter. Hence, it is steadily held as sound law that the master may trust the servant to perform the intermediate, the ordinary and simple duties incident to the servant’s employment and resting upon the servant’s knowledge and skill. For instance, a carpenter knows a good board as well as his master, and in many eases, better. A master buys a mass of raw material — some bad, some good, a result incident to all buying by the quantity in the market. Must he be present in person, or constructively, at every precise moment of time to select and deliver to that carpenter a sound board, so the carpenter will not hurt himself or his fellow-craftsman, or may he trust that carpenter to select a good board from the mass of raw material ? We think there can be but one answer to this question. Lord Coke says: ‘ There are two instruments either to confirm or impugn all things — reason and authority.’ Certainly, reason is with the defendant in this case. .The reason of the thing lies with the proposition that Dunnavant could properly trust the judgment of Porbes and Redford to select sound ledgers. Because, by the very act of hiring themselves to him, they held themselves out as capable of doing that very thing. Authority lies the same way: Bowen v. Railroad, 95 Mo. l. c. 277; Herbert v. Wiggins Perry Co., 107 Mo. App. l. c. 299 et seq., and cases cited; Allen v. Iron. Co., 160 Mass. 557; Dewey v. Parke, Davis & Co., 76 Mich. 631; Beesley v. Wheeler & Co., 103 Mich. 196; Cregan v. Marston, 126 N. Y. 568; Callahan v. Trustees, 180 Mass. 183; Miller v. Railroad, 175 Mass. 363; Colton v. Richards, 123 Mass. 484; Johnson v. Towboat Co., 135 Mass. 209; O’Connor v. Rich, 164 Mass. 560.
“See, also, the pronouncements of this court on a similar question — the non-reliability of the master where the servant, a miner, is intrusted with the duty of inspecting his own drill-holes. [Knorpp v. Wagner, 195 Mo. 637; Livengood v. Lead & Zinc Co., 179 Mo. 229; Fisher v. Central Lead Co., 156 Mo. 479.]”

The same doctrine is announced in the following cases: Beckman v. Brewing Association, 98 Mo. App. 555; Miller v. Railroad, 47 N. Y. Supp. 285; Marsh v. Chickering, 101 N. Y. 396; Cahill v. Hilton, 106 N. Y. 512; Patnode v. Harter, 20 Nev. 303.

In the case at bar, the repair of the tools of the shop was simple and could be readily and easily made by any blacksmith. In fact, I never knew or never before heard of one blacksmith repairing these simple tools for another. What would be the sense in taking a broken or damaged tool from one blacksmith shop to another to have it repaired, or hand it to .another smith in the same shop for that purpose,. when both are engaged in precisely the same work, both for the piaster personally and for the master’s patrons.

To hold in the case at bar, that the battered chisel, mentioned in the evidence, should have been taken to another shop or handed to another, Schuler, plaintiff’s fellow-servant in the same shop, for repairs, would not amount to respectable nonsense, yet if we follow the contention of counsel for plaintiff to its logical conclusion, that would be the inevitable result, or we would be forced to hold the defendant is liable in this case for having failed to do that nonsensical thing.

We are, therefore, of the opinion that the instruction is not vulnerable to this assault.

(2) There is, as an abstract legal proposition, some merit in the second objection made to this instruction, namely, that there is no evidence preserved in the record which tends to show that the plaintiff eaused or permitted the chisel in question to become defective.

I have carefully read all the evidence presented by the record and have failed to find any evidence whatever tending to show that plaintiff caused or permitted the chisel to become defective. The only reasonable inference deducible from the record is, that the chisel was in the condition in which we find it, at the time plaintiff entered the service of the defendant.

To instruct upon a proposition which there is no evidence to support, is clearly erroneous; but the view we have taken of this case renders that error harmless, because it is wholly immaterial who caused or permitted the chisel to become out of repair, as it was the duty of the plaintiff, as before stated, to repair the same before using it.

(3) The last objection urged by counsel for plaintiff against said instruction-is untenable, for the reason that it was his duty to repair all such tools when found by him to be in a defective condition before using them, in the absence of an express order to the contrary, which was not given in this case; but upon the contrary the record discloses the fact to be that the plaintiff of his own volition selected the first chisel used by him in cutting off the heads of the rivets mentioned in the evidence, and becoming convinced that it was not suitable for that purpose, he also of his own volition returned it to the shop and requested Schuler, his fellow-servant, to hand him another, without designating the kind, and in response to said request Schuler handed him the chisel which it is claimed caused the injury. Clearly that was no order for plaintiff to use this chisel, and even though it should be so considered, still there is no pretense made that Schuler had any authority to give any such order or to select any particular chisel for him.

In passing, it may not be out of place to add, that the rule of law discussed in this paragraph of the opinion and the subdivisions thereof, should not be confounded with that rule which requires the master to furnish his servant with a reasonably safe place in which to work and reasonably safe instrumentalities with which to labor. Under that rule the servant has nothing whatever to dq with the place or the instruments with which he works, and in most cases, if not in all, he has no control whatever over either, nor authority to make or repair the same, and in all probability has no knowledge or experience along those lines.

But in the case at bar, as previously stated, and in like cases, the very nature of the servant’s occupation requires him to make, repair and use this character of instruments as the means, if not the sole means, by which he discharges his duties to the master; and in fact in many, if not in the great majority of the cases, the servant knows moré, and is by far more experienced in making, repairing and using such tools and instruments, than the master himself, who often has no knowledge or experience along those lines, and who d.oes and must depend upon his employees who are skilled in those matters to do his bidding, under the supervision and control of a general foreman.

The rule of l$w involved in the case at bar is not an exception to the rule which requires the master to furnish his servants with a safe place and with reasonably safe instrumentalities with which to labor, but is itself elementary in character, and it is as old and as well founded in our jurisprudence as is the law of safe place and safe instruments.

We are, therefore, of the opinion that there is no reversible error in this instruction.

III. Counsel for plaintiff enter two objections against instruction numbered six, previously copied, which are stated in the following language: •

“ (a). It permits a finding that there was a supply of chisels, some of which were reasonably safe for use in the work in which plaintiff was engaged, and that Schuler or plaintiff selected the chisel in question from such supply. There was no evidence on which to base this part of the' instruction, because while defendant showed that it had three chisels of the type of the one which injured plaintiff, it did not offer any evidence from which the jury could find that any one of the three was reasonably safe for the work in which plaintiff was engaged.
“(b). The next and most glaring fault of this instruction is that it set the jurors up as judges of law instead of judges of fact and submitted to them the question as to whether the plaintiff and Schuler were fellow-servants, for it proceeds as follows:
“ ‘And if you further find that the chisel was selected by said Bobert Schuler and that said Eobert Schuler was a fellow-servant of the plaintiff and not a vice-principal of the master, then your verdict should be for the defendant. ’ ”

(a). Attending the first: This objection complains of the instruction because it.authorized the jury to find that there were other chisels on hand which were reasonably safe for the purpose of cutting the rivets mentioned, when, as insisted by counsel, there was no evidence upon which to base it.

Counsel have certainly overlooked some of the evidence, for plaintiff, himself, when testifying regarding the chisels which he was using in doing this work, stated that he had made four, tempered and repaired some two or three others, presumably of the. same type as those used by him, for otherwise there would have been no point in testifying in regard to them; and defendant’s witness Schuler testified that there were two or three other chisels of the same character there at the time, and that plaintiff made his own selection.

That evidence was clearly sufficient upon which to base said instruction.

But independent of all of that, it was wholly immaterial whether there were other chisels there or not, for the simple reason that if they were not there, then it became the plain duty of the plaintiff to repair the one he had before using it, if he thought or believed it was not reasonably safe for the purposes for which he intended to and did use it.

There is no merit in this objection.

(b). The next objection lodged against this instruction is equally destitute of all merit.

It is complained that it erroneously submitted to the jury, instead of the court, the question as to whether or not Robert Schuler was a fellow-servant of the plaintiff.

After a careful reading of the entire evidence in the case, we are satisfied that the action of the court in submitting that question to the jury was erroneous, but unfortunately for the plaintiff the error was committed in his favor and not against him.

The uncontradicted evidence is that they were fellow-servants, and there was not a scintilla of evidence tending to show that Schuler was a vice-principal.

The plaintiff’s statement of the case concedes that fact by the use of the following language:

“Defendant employed sixteen or eighteen men about the work in the foundry, and amongst them a blacksmith named Eobert Schuler. There was a foreman named John Hodecker who had charge of all the men, including the plaintiff.”

Every word of that statement is fully supported by the evidence, and shows conclusively that Schuler was the fellow-servant of the plaintiff.

III. There is a thrid and final reason why the judgment of the circuit court should he affirmed, and that is, the evidence tends-no more to show that the piece of metal which struck and destroyed plaintiff’s eye came from the chisel, than that it came from the rivets which were being chipped off by the use of the chisel.

This is not denied, except in that it is claimed that the original answer of the defendant, which plaintiff introduced in evidence, admits that fact; hut upon an examination of the answer, as an entirety, we are satisfied no such admission was intended, hut upon the contrary, the answer pleaded the fact • to he that the plaintiff’s eye was injured by a piece of metal that came from a rivet head while they were being cut off by means of said chisel, which was one of the risks incident to the plaintiff’s employment, and which under the law he assumed.

Finding no reversible error in the record, the judgment should he affirmed; and it is so ordered.

All concur.