source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. FRANK MYERS, Appellant.
    Division Two,
    June 29, 1909.
    1. DEFENDANT: Cross-Examination: As to Being Married. Cross-examination of any witness is not confined to a mere categorical review of the matters stated in the direct examination. Where defendant had testified in his direct examition that his wife had told him she had heard someone prowling about the house and to get his pistol and investigate, and for that reason he had in his pocket the pistol on the night of the homicide, it was not error for the State to inquire of him on cross-examination whether or not he was in fact married.

      2. MURDER: In Second Degree: Instruction. An. instruction informing the jury that murder in the second degree is the killing of a human being wilfully, premeditately and with malice aforethought, and then proceeds to correctly define those words, and in all respects in harmony with approved precedents, is correct.
    3. MANSLAUGHTER: Instruction: No Provocation. Where there is no evidence of any personal violence inflicted upon the defendant before he fired the fatal shot, and he makes no pretense that he was laboring under any excitement or passion at the time, but expressly states that he shot deceased in order to protect his own life, no instruction on manslaughter in the fourth degree should be given. And where he testifies that the deceased bar-keeper, when he had refused to give .him his key, threw off his apron and said, “If that is what you came over here for, looking for trouble, you will get all you want of it,” and that he stepped forward, leaned under the bar, and said, “Now travel, you s — o—a—b—, travel,” and that as deceased said that and had stooped down under the counter on the opposite side defendant pulled his revolver and shot him while he was stooping over, there is no manslaughter in the fourth degree in the case, but the homicide was either done in self-defense, or was murder in the second degree. [Distinguishing State v. Grugin, 147 Mo. 39.1
    Appeal from St. Louis City Circuit Court. — Hon. D. D. Fisher, Judge.
    Affirmed.

      Frank H. Farris for appellant.
    (1) Defendant is a competent witness in his own behalf, subject to cross-examination as to matters referred to in his examination in chief, and subject to contradiction and impeachment as other witnesses. E. S. 1899, see. 2637. In the case of State v. Magraw, 74 Mo. 573, the prosecuting attorney was permitted to ask the defendant if he had not been convicted and sent to the penitentiary in Kansas under the name of Hallow, and the Supreme Court reversed the trial court, and in its opinion stated, “The cross-examination of defendant in a criminal case must be confined to those matters referred to by him in his examination in chief;” bnt it has been held in the case of State v. Miller, 100 Mo. 606, and State v. Taylor, 118 Mo. 159, that the witness may be asked a question similar to the one asked defendant in this case, not, however, for the purpose of showing that the witness has been convicted of crime, but as questions affecting the general credibility of the witness. State v. Porter, 75 Mo. 177; State v. Patterson, 81 Mo. 90; State v. Chamberlain, 89 Mo. 133; State v. Turner, 76 Mo. 350. It was prejudicial to the rights of defendant to undertake to show by cross-examination that his marriage was a common-law marriage, which, while recognized by our law as binding, is ofttimes repulsive to the public, depending largely upon their individual views of the marriage contract; and it was also prejudicial in attempting to show by cross-examination that defendant had entered into this common-law marriage with a married woman, which, if true, would make him guilty of adultery. State v. Hudspeth, 150 Mo. 28; State v. Westlake, 159 Mo. 677.; State v. Hathorn, 166 Mo. 239; State v. Kyle, 177 Mo. 663; State v. Miller, 190 Mo. 463; State v. Barrington, 198 Mo. 83. (2) The court failed of its own motion to give any instructions for manslaughter, and the defendant asked and the court refused instructions for manslaughter in the fourth degree, couched in different language and prepared from different views, which were authorized and warranted by the testimony. R. S. 1899', sees. 1833,1834; 2 Bish. Crim. Law (6 Ed.), sec. 704; 1 Russ. Crimes (7 Am. Ed.), p. 580; State v. Brown, 64 Mo. 373; State v. Branstetter, 65 Mo. 149; State v. Partlow, 90 Mo. 626; State v. Elliott, 98 Mo. 156; State v. Howard, 102 Mo. 147; State v. Harrison, 147 Mo. 556; State v. Hudspeth, 159 Mo. 194; State v. MeKinzie, 177 Mo. 710; State v. Todd, 194 Mo. 396; State v. Darling, 199 Mo. 197.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) On the cross-examination of the defendant, he was questioned as to the legality of his marriage to the woman to whom he had referred in his direct examination as his wife. Defendant had testified, in substance, that it was at his wife’s instance and to protect her from some prowler that he put the pistol with which he killed Burroughs into his pocket on the night of the tragedy.' The purpose of this testimony was to invest the weapon with a sort of sanctity by its use in the protection of wife and home, and to place defendant before the jury with the best of reasons for being armed. Having opened the way in this manner, he was properly subjected to cross-examination on the question as to whether he had a wife to protect. If he was, in fact, not married at all, it could have been properly shown to meet and destroy his claim of innocency of purpose in carrying the pistol with which he killed Burroughs. In such a case “cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. It is a proper effort to test the truth of that evidence.” State v. Miller, 156 Mo. 85; State v. Fisher, 162 Mo. 173. “Cross-examination from time immemorial has been the great test of credibility of any witness. ’ ’ State v. Miller, 190 Mo. 463; State v. Mc-Kinzie, 102 Mo. 632; State v. Barrington, 198 Mo. 81; State v. Cunningham, 154 Mo. 174. (2) The court’s definitions of “murder in the second’ degree,” “willfully,” “premeditatedly,” “malice,” and “malice aforethought,” are not subject to criticism. State v. Curtis, 70 Mo. 600; State v. Talbott, 73 Mo. 350; State v. Fitzgerald, 130 Mo. 420. (3) The question presented is, whether there was any evidence in the case on which to base an instruction for manslaughter in the fourth degree, (a) It is passion and hot blood of tbe defendant which.- reduces the degree of criminality of the killing. Therefore, it seems that what the defendant saw and heard at the time should govern in determining whether there was ‘£ reasonable provocation” and consequent “heat of passion,” such as to characterize defendant’s act as manslaughter in the fourth degree. State v. Holme, 54 Mo. 165. (b) In cases in which the facts were not wholly dissimilar to those of the case at bar, it was held that there was no manslaughter therein. State v. Wieners, 66 Mo. 23; State v. Howard, 102 Mo. 146; State v. Wilson, 88 Mo. 19. (c) Words alo'ne, however insulting, cannot furnish that character of provocation which reduces the grade of the offense to manslaughter in the fourth degree. State v. Sansone, 116 Mo. 13; State v. Bulling, 105 Mo. 221; State v. Gordon, 191 Mo. 125; State v. McMullin, 170 Mo. 630; State v. Gieseke, 209 Mo. 343. Likewise as to contemptuous and insulting acts and gestures. State v. Gordon, 191 Mo. 125; State v. McKenzie, 177 Mo. 711; State v. Starr, 38 Mo. 277; State v. Edwards, 203 Mo. 543; State v. Elliott, 90 Mo. 355. (d) To have the effect to reduce the killing to manslaughter there must usually be personal violence offered defendant. State v. Starr, 38 Mo. 277; State v. Branstetter, 65 Mo.’’ 154; State v. Wieners, 66 Mo. 23; State v. Edwards, 70 Mo. 483; State v. Reed, 137 Mo. 140. (e) It is true that “If there is- a present demonstration of impending violence, which alone would be sufficient, accompanying words, added to physical acts, may create such peril as will justify the killing of the aggressor or reduce it to manslaughter.” State v. Elliott, 98 Mo. 157; State v. Howard,- 102 Mo. 147. But in this last case, though conceding the rule, the court held it inapplicable. And in this case the rule is inapplicable. State v. Edwards, 203 Mo. 544; State v. Gartrell, 171 Mo. 521.' (f) There were no antecedent circumstances to add to the provocation offered deceased, nor were the words used by him, and the circumstances at the time, of that extremely outrageous character which would bring this homicide within the opinion in State v. Grugin, 147 Mo. 59. See State v. Gartrell, 171 Mo. 522. (g) There is no pretense by defendant that he was excited. Beyond the fact of the sudden shooting of Burroughs, neither his words nor acts indicate such “heat of passion” as the rule contemplates. State v. West, 202 Mo. 141; State v. Gartrell, 171 Mo. 522. Defendant best knew his purpose in firing the fatal shot and an instruction inconsistent with his testimony on that head should not have been given. State v. Reed, 137 Mo. 138; State v. Gartrell, 171 Mo. 522. And it is the ‘ ‘ state of mind, ’ ’ and not the provocation, merely, which reduces the grade of the offense. Unless defendant shot in the “heat of passion” and had “reasonable provocation” therefor, there is no manslaughter of this character in the case. State v. Ellis, 74 Mo. 218. (h) Mere suspicion of injury will not reduce the grade of the offense. It will still be murder. State v. Holme, 54 Mo. 164.
   FOX, J.

The defendant has brought this cause to this court by appeal from a judgment of the circuit court of the city of St. Louis, convicting him of murder in the second degree.

On the 6th day of November, 1907, there was filed in the circuit court of the .city of St. Louis an information for murder in the second degree, duly verified by the assistant circuit attorney, charging the defendant, Frank Myers, with having killed Garrell Burroughs. This offense was charged to have been committed on October 5, 1907. Defendant was arraigned upon the charge and entered his plea of not guilty January 13, 1908. A jury was duly impaneled and sworn and the trial upon the evidence was then proceeded with„

The testimony developed upon the trial - tends substantially to show the following state of facts:

That the defendant had been for some years engaged in conducting what was known as the “Western Hotel” on Third and Carr streets in St. Louis, Mo.; that deceased, Uarrell Burroughs, had roomed at defendant’s hotel “off and on probably for two years,” and had roomed there during the months immediately preceding his death until the evening before that event occurred. On that evening he left defendant’s place, but the evidence gives no reason for his removal. Burroughs had been a waiter in a restaurant at 1111 North Third street in St. Louis until about a month before the shooting. During that month he had been working as barkeeper in the saloon conducted by Louis Fisher at the corner of Broadway and Wash in St. Louis, and was on duty at that place on the night of Saturday, October the 5th, 1907. According to the evidence there had been no previous ill-feeling between dceased and defendant, unless it is to be inferred from the fact that defendant had retained the key of Burroughs’ trunk when the latter removed from the Western Hotel, and the fact that the conversation immediately preceding the firing of the fatal shot is a little hard to explain, unless on the theory of a previous misunderstanding. At the time of the shooting there was in the saloon Myers, the defendant; Burroughs, the deceased; Clyde Speer, another barkeeper; P. J. Tillman, George King, Michael Brennan, William Knox and two unidentified men. The two last and King did not testify. At about 7:30 p. m. on the day mentioned, Tillman, Brennan and King were in the saloon where the killing took place and were engaged in disposing of their second round of drinks when the defendant, Myers, entered the place. The latter invited the three to drink with him. Spear was serving the drinks, and Burroughs, the deceased, .until this juncture, had been seated behind and near the north end of the bar. Knox entered the saloon about this time by the side door and defendant amended his invitation to drink so as to include Knox. At this time, or a moment previous, according to witness Tillman’s version, deceased approached the center of the bar where defendant was standing, the bar being between the two, and said' to defendant, “Have you got my keys’?” Defendant answered, “Yes,” and deceased said, “Let me have them,” to which defendant rejoined, “If you want them, come and get them.” Burroughs then said something in an angry, mumbling tone, which witness did' not understand, threw off his apron and reached down under the har, leaning over or stooping so that his whole body was below the level of the bar rail. Defendant instantly drew his pistol, stepped up to the bar, reached over it and fired one shot downward. Speer’s account of the tragedy was that Myers and Burroughs were talking in a low voice and the only portion of the conversation he heard was Myers’ remark that “the only way you can get it is to take it;” that he, the witness, turned to draw some beer and then heard the shot The tone used in the conversation did not seem angry, according to this witness. Michael Brennan’s version is that Burroughs said to defendant, “You have got my key.” “So Myers said he had it, or something to that effect, and I turned around, speaking to my friend. ’ ’

“Q. What did you say Myers said? A. Myers said he had the key. So Garrell Burroughs asked him for it, and he said he wouldn’t give it to him.

“Q. He wouldn’t? A. Yes, sir; that is all I heard. I turned around to speak to my friend; and so they had some argument between the two of them. There was some altercation between them, which made hot words; whatever they were I couldn’t understand, and Garrell Burroughs, the deceased, said something in a threatening attitude and went down, apparently reaching for something behind the bar, and just as I turned around Frank Myers pulled his revolver out of his pocket and shot the man behind the bar. ’ ’

In explaining Burroughs’ “threatening attitude” the witness declared that “he,” Burroughs, “appeared ‘sore,’ ” and “didn’t have a pleasing face on him.” This witness also testified that just after Burroughs “went under the bar” defendant stepped up, leaned over the bar and shot him.

The deceased had no weapon on his person when he was killed, and neither he nor defendant made any other demonstration than detailed above. Only one shot was fired and it proved almost instantly fatal, Burroughs never having regained consciousness, dying in the hallway to which he had been removed immediately after the shooting. The post-mortem developed that the bullet entered the body of deceased at the lower angle of the right shoulder blade, pierced both lungs and the aorta, and lodged on the left side of the body between the fifth and sixth ribs, ranging slightly upward and forward. The deceased was a young man about twenty-three or twenty-four years old. After shooting Burroughs, defendant left the saloon and' returned to the Western Hotel, where he was arrested soon thereafter. The defendant had concealed the pistol with which Burroughs was shot under some steps in the alley back of the hotel. On being asked by the officers where the weapon was, he accompanied them to the alley, secured and delivered it to them.

Defendant’s counsel was at some pains to lay a foundation for showing discrepancies between the testimony of witness Tillman on the trial in the circuit court and that given by him in the court of general sessions on the preliminary, but the proof of the testimony given by this witness in the last-mentioned proceeding was not made.

On behalf of defendant, William Knox testified that he had resided at Myers’ hotel nearly three years, and was residing there at the time of the trial; that he and Burroughs had been roommates; that he was in the saloon at Broadway and Wash streets at the time Burroughs was shot on the evening of Saturday, October 5, 1907; that on entering he said to defendant, who was at the bar with others, “Myers, who is doing this?” The witness then gave this description of the occurrence: “And he asked me what I was going to have, I said, ‘Beer,’ and I walked towards the bar. As I did, Burroughs came forward where the cash register was, towards Myers, and he said, ‘Giod damn you, have you got anything coming to you? If you came looking for trouble you are going to get what is coming to you.’ And then I turned around. The other man put the beer on the bar, and as I turned my shoulder that way (indicating) to lift the beer with my left hand, Burroughs had turned the other way. He half turned, and he said to Myers, he said, ‘God damn you, you are going to get what is coming to you,’ and as I turned to take my beer, the shot was fired, but I could see it just as it passed my shoulder; I saw the glance of the gun as he stepped back. Mr. Myers stepped back from the bar, and I stepped on the rail and looked over, and he was lying on his face then.” On cross-examination Knox said that he could not see Myers when the shot was fired, but saw Burroughs turn and then the shot “passed his left shoulder. ’ ’ He heard Burroughs say nothing, except as detailed on his direct examination. Knox admitted that at the coroner’s inquest he testified that what he heard Burroughs say to Myers was, “If you come here looking for anything you can get it, ’ ’ but declared he then omitted the oaths out of regard for the mother, wife and sister of deceased.

Mrs. John Hill, for defendant, testified that she lived at the defendant’s hotel; that the State’s witness Tillman was also living there in October, 1907, and that on the night Burroughs was killed she met Tillman on the stairway in the hotel, and he told her that during the altercation which resulted in Burroughs’ death the latter said to defendant, “If you are looking for trouble, you can get all you want of it, you son-of-a-bitch,” and that deceased then stooped and put his hands under the bar and said, “Travel, you son-of-a-bitch, travel,” and then Myers shot.

Lottie Noels, defendant’s sister, testified that on the morning of the coroner’s inquest held to investigate the killing of Burroughs, State’s witness Tillman had told her in the presence of Mr. Morris, the then attorney of defendant, that immediately before he was shot Burroughs had said to defendant Myers, “Glod damn you, you are here looking for trouble, and you will get it.” And that Burroughs then stooped or reached under the bar, saying, “'Now, travel, you son-of-a-bitch, travel,” and that then defendant fired.

John Hill testified that he lived at defendant’s hotel and was living there on October 5, 1907, the date of the tragedy. That about 7 p. m. on that day defendant’s wife came to defendant’s room and told him she had been frightened by some one “walking around there,” and asked defendant to go out and look into the matter; that she suggested he had better take his pistol, which defendant then took from the mantel and went upon his mission of investigation.

Defendant testified in his own behalf to the effect that for over three years he had been conducting the Western Hotel, 1035 North Third street; that deceased had lived at the hotel probably two years prior to his death, but had1 left the place the day before his death. That deceased carried a pistol habitually, and that he, defendant, had often seen it, and Burroughs had on three occasions left it with bim for safekeeping. He explained his taking his pistol to Fisher’s saloon on the night of the tragedy there by saying that he put it in his pocket at his wife’s instance to investigate the doings of some prowler who had frightened her, and on his return from that errand had not thought of the pistol further, but had left it remaining in his pocket. He declared he had no intention of visiting the Fisher saloon when he left the house that evening, but that after he was out on the street it occurred to him that Speer, one of the bartenders at the saloon, owed him a small bill, and he then went down to collect it. Defendant’s account of the occurrences immediately preceding the firing of the fatal shot is in these words: “I walked in the saloon, walked up to the center of the bar, and four men were in there that I knew, or three in there that I knew and two that I didn’t know, and I said, ‘Boys, what are you going to have?’ And they ordered' their drinks, and I paid for the three of them, and Mr. Speer asked me what he owed me, and I told him, and he settled what he owed me; and Knox came in the side door, and he said, ‘Who is doing this?’ and I said, ‘I am, what are you going to have?’ He said, ‘Give me a glass of beer;’ and then Burroughs came walking down from the north end of the counter where'he had been sitting. He got up and walked down, and he said, ‘Have you got that key of mine with you?’ and I said, ‘Yes,’ and he said, ‘Well, I want it;’ and I said ‘I will give it to you when I get ready.’ At that he stepped back, jerked off his apron, threw it to one side, and he said, ‘If that is what you came over here for, looking for trouble, you will get all you want of it; ’ and he stepped forward, leaned under the bar, and he said, ‘Now travel, you son-of-a-bitch, travel,’ and as he said that I pulled my revolver and fired at him.” Defendant declared that when he fired he did so because he believed he was in danger of great personal harm at the hands of Burroughs; that he had no intention of having a difficulty with deceased, and made no demonstration toward him until he ‘ ‘ saw him start to reach under the bar, and when he did that I thought he was going after something, and I reached with my revolver and fired.” On cross-examination defendant said that he and the deceased had never had any previous difficulty, but 'were friends; that the only trouble between himself and deceased was that which occurred in the saloon at the time Burroughs was killed. Defendant admitted that in the court of general sessions, he had testified, in substance, that at the time deceased was reaching under the bar just before the shooting, deceased was stooping, and as he, defendant, pulled his revolver, deceased suddenly “went down, ducked out of sight behind the bar” and was out of sight, down behind the bar, when defendant reached over and fired downward, just as the deceased disappeared.

Defendant was corroborated as to the habit of deceased in carrying a pistol by both the witnesses for the State and the defense; but the evidence shows deceased had no weapon the night he was killed, either on his person or elsewhere in the saloon.

Defendant offered several witnesses who gave testimony tending to establish his good .reputation for peace and quiet, both in the neighborhood of the "Western Hotel, and also in the district in the vicinity of Fifteenth street and Washington avenue.

At the close of the testimony the court fully instructed the jury upon every subject connected. with the commission of this offense to which the testimony had any application. We deem it unnecessary to reproduce the instructions given and those refused, but will give them such attention in the course of the opinion as their importance may require. The cause was submitted to the jury upon the testimony as indicated and the instructions of the court and they returned a verdict finding the defendant guilty of murder in the second degree as charged in the information and assessed his punishment at imprisonment in the penitentiary for a term of ten years.

Timely motions for new trial and in arrest of judgment "were duly filed and by the court taken up and overruled. Sentence and judgment then followed in accordance with the verdict returned and from this judgment defendant prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The assingment of errors as disclosed by the record now before us may thus be briefly stated:

First. That the court erroneously permitted the prosecuting attorney to cross-examine the defendant upon matters to which he made no reference in his direct examination, and upon subjects and in a manner prejudicial to defendant’s rights.

Second. That the court erroneously defined in its instructions murder in the second degree and the elements thereof.

Third. That the instructions given to the jury by the court upon self-defense did not fully cover all the elements of that subject.

Fourth. That the court committed error in failing to give proper instructions upon all the law applicable to the case as made out by the evidence.

Fifth.. That the court erroneously and improperly refused to give the instructions as requested by the defendant.

"We will give the complaints urged by learned counsel for appellant such consideration as the importance of the propositions requires.

I.

Directing our attention to the cross-examination of the defendant, of which counsel for appellant complains, it is-sufficient to say that we have read in detail the disclosures of the record as applicable to that proposition. We find that the defendant in his examination in chief referred to his wife, and urged as a reason why he. carried the pistol on the evening of the fatal difficulty that his wife had said to him that she thought there was somebody out in the hack yard where the hydrant'is, and that he had better go out there and see who it was, and that she advised him to take something with him for his defense, and in compliance with the suggestions by his wife he walked over to the mantel piece where there were two revolvers lying and put one in his side coat pocket and went out there. This clearly was at least a suggestion on the part of the defendant that he had this pistol at the instance of his wife and for the protection of his home against those who were improperly prowling about the premises. The cross-examination of the defendant was a mere inquiry, having referred to the fact that his wife suggested that he take something for his defense, as to whether or not he was in fact married.

We are of the opinion that the defendant having in the manner as indicated referred to his wife, there was no impropriety on the part of the prosecuting attorney in cross-examining him on a matter to which he had directly referred in his examination in chief, for the purpose of ascertaining whether in fact he Was married.

It has been repeatedly and uniformly held by this court that cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. It is simply a proper effort to test the truth of the evidence given in such direct examination. [State v. Miller, 156 Mo. l. c. 85-86; State v. Fisher, 162 Mo. l. c. 169.]

This- court, in discussing the statute which provides for the cross-examination of a defendant as to any matter referred to in his examination in chief, very properly said: “When the statute says ‘a defendant may he cross-examined as to any matter referred to in his examination in .chief and may be contradicted and impeached as any other witness in the case,’ it does not mean that the defendant can take the stand and in answer to one or two well prepared interrogatories sweep away- the whole structure of the State’s case, and then remain immune from a cross-examination on the issue thus tendered. Cross-examination from time immemorial has been the great test of credibility of any witness.” [State v. Miller, 190 Mo. l. c. 463; State v. McKinzie, 102 Mo. l. c. 632; State v. Barrington, 198 Mo. l. c. 81; State v. Cunningham, 154 Mo l. c. 174.]

After a most careful consideration of the disclosures of the record as applicable to this cross-examination we have reached the conclusion that it did not constitute any error which would authorize this court to reverse the judgment, and upon the contention of appellant upon this proposition the ruling must be adverse to the insistence of appellant.

II.

It is insisted by appellant in his assignment of errors that the court in its instructions to the jury improperly defined murder in the second degree. We have most carefully analyzed instruction No. 1, which defines this offense. It is as follows:

“First. Murder in the second degree is the killing of a human being willfully, premeditatedly and with malice aforethought.

“ ‘Willfully,’ as used in these instructions, means intentionally; not by accident.

“ ‘Premeditatedly’ means thought of before hand for any length of time, however short.

“ ‘Malice,’ in its legal sense and as used in these instructions, does not mean mere spite, ill will, hatred or dislike as it is ordinarily understood, but it means that condition of the mind which prompts a person to intentionally take the life of another without just cause, justification or excuse.

“ ‘Malice aforethought’ means malice with premeditation.

“The court instructs the jury, that if, bearing in mind these definitions, you believe and find from the evidence, that the defendant, Prank Myers, at the city of St. Louis and State of Missouri did on or about the 5th day of October, 1907, or at any time before the finding of the information herein, willfully, premeditatedly and with malice aforethought shoot and mortally wound, with a pistol loaded with gunpowder and leaden ball, one G-arrell Burroughs and further find from the evidence, that within a year and a day after such shooting and wounding, to-wit, on or about the 5th day of October, 1907, the said G-arrell Burroughs died from the effects of such shooting and wounding done by the defendant aforesaid, you will find the defendant guilty of murder in the second degree, and unless you so find the facts you will acquit him of murder in the second degree.

“If you find the defendant guilty of murder in the second degree, you will assess his .punishment at imprisonment in the penitentiary for such length of time as you deem proper, not less than ten years.

“Second. The court further instructs you that if you find from the evidence that the defendant, Frank Myers, intentionally killed the deceased, Garrell Burroughs, by shooting him and wounding him with a pistol loaded as aforesaid in the manner set forth in the foregoing instructions, and that such pistol loaded as aforesaid, was a deadly weapon, then the law presumes that such killing was murder in the second degree, in the absence of proof to the contrary, and it devolves upon the defendant to meet or repel that presumption, unless such presumption is met or repelled by the evidence introduced on behalf of the State.”

We are unable to agree with learned counsel for appellant that there was any error in this instruction. It is one that has repeatedly met the approval of this court. It informed the jury that murder in the second degree is the killing of a human being wilfully, premeditatedly and with malice aforethought; then follows the definition of the terms “wilfully,” “premeditatedly,” “malice” and “malice aforethought” in a manner that has repeatedly met the approval of this court. There are numerous cases by this court wherein it was held that the definition of those terms as indicated was entirely proper. The definition of murder in the second degree, as embraced in the instruction, the correctness of which is challenged, finds full support in the repeated and uniform decisions of this court. [State v. Curtis, 70 Mo. l. c. 600; State v. Talbott, 73 Mo. l. c. 350; State v. Fitzgerald, 130 Mo. l. c. 420.] Those cases clearly point out the distinction between murder in the first and second degrees, and the instruction as given upon the offense of murder in the second degree is in entire harmony with the rule announced in those cases.

in.

This leads us to the consideration of the earnest insistence on the part of appellant that the court failed in its instructions to cover all the subjects to which the testimony was applicable. This contention is principally directed to the failure of the court to give an instruction upon manslaughter in the fourth degree. The consideration of this proposition renders it essential to briefly review the testimony developed at the trial.

We have carefully read in detail all the evidence as disclosed by the record in this cause and in our opinion, giving to the testimony of the defendant, as well as to that of any other witnesses he may have introduced, full credence, it furnishes no sufficient basis for an instruction on manslaughter in the fourth degree. The defendant makes no pretense that he "was laboring under any excitement or passion at the time he shot the deceased, but expressly states that he shot him in order to protect his own life. There is no evidence of any personal violence inflicted by the deceased upon the defendant before the fatal shot was fired. The defendant, in relating this occurrence, substantially stated that he met the deceased in the saloon and that he got up and walked down, and he said, “Have you got that key of mine with you?” and I said, “Yes,” and he said, “Well,.T want it,” and I said, “I will give it to you when I get ready.” “At that he stepped back, jerked off his apron, threw it to one side, and he said, ‘If that is what you came over here for, looking for trouble, you will get all you want of it;’ and he stepped forward, leaned under the bar, and he said, ‘Now, travel, you son-of-a-bitch, travel,’ and as he said that I pulled my revolver and fired at him.” Defendant admitted that he had previously testified in substance that at the time the deceased was reaching under the bar just before the shooting, deceased was stooping, and as he, defendant, pulled his revolver, deceased suddenly “went down, ducked out of sight behind the bar,” and was out of sight down behind the bar when defendant reached over and. fired downward, just as the deceased disappeared.

We repeat, giving to the defendant’s testimony its full weight, it simply makes out a case of self-defense or murder in the second degree.

In the comparatively recent case of State v. Goldsby, 215 Mo. 48, wherein the facts in some of the essential features were similar to the facts in the case at bar, it was held that the court would not have been warranted in giving an instruction for manslaughter in the fourth degree. So it may be said in the case at bar, that the facts as developed upon the trial did not authorize the court to give an instruction upon that grade of the offense.

In State v. McKenzie, 177 Mo. 699, this court pointed out the distinction between murder in the first and murder in the second degrees and manslaughter in the fourth degree; then expressly approved the definition of manslaughter in the fourth degree as announced in State v. Hermann, 117 Mo. 637, where it was said: “Manslaughter in the fourth degree, under the statutes of this State, has often been defined by this court to be the intentional hilling of a human being in a heat of passion on a reasonable provocation without malice, and without premeditation, and under circumstances that will not render the hilling justifiable or excusable homicide.”

In State v. Bulling, 105 Mo. l. c. 225, it was expressly ruled by this court that the heat of passion contemplated by the statute which would reduce a hilling from murder in the first or second degree to manslaughter in the fourth degree “is that heat of passion which is produced by a lawful provocation as that term was understood at common law,” and it was held in that case that the terms “legal,” “lawful,” “adequate” and “reasonable,” when used as adjectives qualifying “provocation,” are synonymous terms, and then announced the general rule that, with very few exceptions, it takes an assault or personal violence to constitute the provocation as contemplated by the use of those terms.

In State v. Starr, 38 Mo. 277, it was ruled by this •court that, “Where there is lawful provocation, the law, out of indulgence to human frailty, will reduce the killing from the crime of murder to manslaughter; but neither words of reproach, howsoever grievous, nor indecent provoking actions or gestures, however much calculated to excite indignation or arouse the passions, are sufficient to free the party killing from the guilt of murder. To have the effect to reducé the guilt of killing to the lower grade, the provocation must consist of personal violence. . . . There must he an assault upon the person, as where the provocation was by pulling the nose, purposely jostling the slayer aside in the highway ... or other direct and actual battery.” [See, also, State v. Branstetter, 65 Mo. 149.]

The same rule as announced in the case last cited was strictly adhered to in the comparatively recent case of State v. Gieseke, 209 Mo. 331. While the court in that case criticised an instruction given respecting the subject of manslaughter in the fourth degree, foi; the use of the terms “just cause,” instead of “reasonable” or “lawful,” yet it approved the direction to the jury that no words of abuse or vile names were sufficient to reduce the crime of killing to a lower degree than murder, and in order to reduce the crime of killing to manslaughter the provocation must have consisted of personal violence to the defendant, or the' danger of such personal violence must have been apparent and imminent, or must have appeared to the defendant to be apparent and imminent at the time of the killing before they could find him guilty of manslaughter.

The testimony in this case does not indicate that the deceased had any weapon in his hand at the time he and the defendant first began the conversation about the key, but according to the defendant’s own testimony the deceased simply threw off his apron and then “ducked” down beyond the bar, using the vile epithet, “You damn son-of-a-bitch,” whereupon the defendant reached over the bar and fired the fatal shot, and says in his testimony expressly that he fired at him simply to preserve his own life.

In State v. Gieseke, supra, the case, of State v. Grugin, 147 Mo. 39, which is chiefly relied upon by appellant in this cause, was distinguished, and it was expressly stated in the Gieseke case that “what was said in State v. Grugin, 147 Mo. 39, applied to the peculiar facts of that case, as since explained by this court, and is in no manner to be construed as overruling the long and unbroken line of authority in this State to the effect that mere words of reproach, however degrading, will not of themselves constitute such a lawful provocation as to reduce a killing from murder to manslaughter.”

In State v. Gartrell, 171 Mo. 489, according to the testimony of the defendant, Gartrell, the deceased, at the time he was killed, was exhibiting a wrench and in addition thereto applied to the defendant opprobrious words and epithets. It was said in that case that “if the jury found the defendant had reasonable cause to apprehend the deceased was about to kill him, or do him great bodily harm, and the danger was about to fall, he had the right to kill him, and was guilty of no crime, not even manslaughter.”

In that case State v. Garrison, 147 Mo. 548, and State v. Grugin, 147 Mo. 39, heretofore .referred to, were distinguished. It was said that the facts of the Gartrell case distinguish it from State v. Garrison, in that, that in that case the threat was accompanied by the throwing of a hatchet at defendant by deceased, which constituted an actual assault. In distinguishing the Gartrell case from the case of State v. Grugin, supra, it was said: “While there.is language in State v. Grugin, 147 Mo. 39, which, in the absence of an understanding of all the facts, tends to support the ‘contention of defendant that words of opprobrium alone are sufficient provocation, it is obvious that the learned judge who wrote that opinion confined his remarks to the exceptional facts of that case. He nowhere expressed any intention of overruling the long line of cases in this State to the contrary. He was dealing with the provocation suffered by a. father over the outrage of his daughter, and the heartless and insolent confession, in effect, by the deceased, coupled with a threatened assault.” The final conclusion then was announced in the Gartrell case that “while doubtless there are many cases in which the facts justify not only an instruction on self-defense, but one for manslaughter in the fourth degree, we do not think this case required an instruction on any grade lower than murder in the second degree. ’ ’

In State v. Gordon, 191 Mo. l. c. 125, the rule as applicable to this subject was thus announced: “At common law words of reproach, howsoever grievous, were not provocation sufficient to free the party killing from the guilt of murder, nor were contemptuous or insulting actions or gestures without an assault upon the person, nor was any trespassing against lands or goods to have the effect to reduce the guilt of killing to a grade of manslaughter; the provocation must consist of personal violence. [East’s Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13.] And the common law rule in this respect is firmly established in this State by a long line of decisions. [State v. Starr, 38 Mo. 271; State v. Branstetter, 65 Mo. 149 ; State v. Hill, 69 Mo. 451; State v. Elliott, 98 Mo. 150; State v. Gartrell, 171 Mo. 516-519.] ”

We have thus given expression to our views upon this proposition, and if the long and unbroken line of cases which announce the rule respecting the1 nature and character of the provocation essential to reduce the killing from murder to manslaughter is to be longer followed, we see no escape from the conclusion that this case was not one which warranted the court in giving an instruction for manslaughter in the fourth degree.

Repeating partly some of the evidence upon which it is sought to base an instruction for manslaughter, it will be observed that tbe deceased was exhibiting no weapon at the time the conversation began about the key, and the defendant had made no demonstration toward the deceased until he saw him start to reach under the bar, and when he did that, presumably the defendant must have thought he was going after something, and reached with his revolver and fired. According to the defendant’s testimony the deceased was “leaning” or “ducking” or “stooping,” and “as he started to reach under the counter I drew my revolver and he immediately seemed to duck.” It appears from the testimony that the defendant and the deceased were on opposite sides of the bar. As deceased ducked defendant reached over the bar and fired; just fired down where he thought he might be; fired just as he disappeared. Deceased was unarmed; had on no coat, only Ms bartender’s jacket. Under this state of facts, in view of the uniform expressions of this court as to the rules of law applicable to such state of facts, we are unable to reach any other conclusion than that the court’s action in refusing the instruction for manslaughter in the fourth degree was entirely proper.

IV.

This brings us to the consideration of the insistence on the part of learned counsel for appellant that the action of the court in refusing the instructions requested hy the defendant constitutes error. We shall not undertake to reproduce the instructions requested. It is sufficient to say upon that proposition that we have carefully analyzed in detail the instructions requested and refused. Instruction numbered 1 embraced an instruction for manslaughter in the fourth degree, as well as numbered 3. That question has been fully discussed in the consideration of the third proposition. Instruction numbered 2 is a brief instruction upon justifiable homicide, which is fully covered by the instructions given by the court. Numbers 4 and 5 are both instructions bn manslaughter in the fourth degree. Number 6 is an instruction covering the subject of the weight to be attached to the testimony of witnesses. That subject is fully covered by the instructions of the court. Instructions numbered 7 and 8 are directed to the subject of justifiable homicide. As. before stated the subject was fully treated of in the instructions as given by the court. Number 9 is another instruction embracing the subject of manslaughter in the fourth degree. As before stated that subject has been fully treated of in the consideration of the third proposition as stated in the opinion, hence there is no necessity for repeating what was said concerning that subject.

Y.

■We have herein given expression to our views upon the legal propositions as disclosed by the record. The testimony as developed upon the trial was somewhat in conflict. It was the exclusive province of the jury to pass upon the evidence. The facts as testified to both by the witnesses for the State and the defendant presented a case either of murder in the second degree or justifiable homicide on the ground of necessary self-defense. The court submitted the issue as presented fairly to the jury; fully covered every subject to which the testimony was applicable; in fact the instructions as given presented the case in a most favorable view for the defendant. The jury was required to find every essential element necessary to constitute the offense of which the defendant was convicted, and the law upon the subject of self-defense was fully and extremely favorably declared for the defendant.

Entertaining the views as herein indicated, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, P. J.

text:
    IN RE SAMUEL S. SHULL, Ex parte Petitioner for Writ of Habeas Corpus Directed to Otto Theison, Sheriff.
    Division Two,
    June 29, 1909.
    1. CONTEMPT: Commitment. The statutes require that when a citizen is committed to jail for a contempt the commitment itself must contain “the particular circumstances of his offense,” and the contempt must he plainly and specifically charged in the commitment.
    2. --: -: Refusal to Answer Questions. A recital in ■the order leading up to the adjudication of contempt that the witness was ashed “proper and'- legal questions,” that the court had ruled them to he such, and the witness was directed to answer them and refused, falls far short of specifically and plainly charging the contempt, as the statute requires. The particular questions which he refused to answer should be stated, not merely the court’s'conclusion that they were legal and proper. q
    3. -: -: -: Intendment. Contempt is a specific criminal offense, and, as in other criminal proceedings, nothing not recited in the adjudication will he inferred from the matter of inducement set out therein, nor will presumptions or intendments be indulged in in order to sustain a conviction.
    4. -: -: -: Conclusion: Disrespect of Court. It is not sufficient that the- adjudication of contempt recite that the witness “is hereby ordered and adjudged guilty of contempt of court in treating the court disrespectfully and he is hereby committed,” etc. That is a recital of a conclusion, not a finding and adjudication of the facts which constituted disrespectful conduct.
    Habeas Corpus.
    Petitioner discharged.

      Warren C. Rogers for petitioner.
   GANTT, P. J.

By this proceeding we are asked to review a commitment of petitioner by tbe circuit court of Buchanan county, for an alleged contempt.

It appears that on May 7, 1909, the petitioner appeared in Division No. One of the circuit court of Buchanan county, in obedience to a subpoena duces tecum, requiring his presence in said court to testify in a certain cause wherein Mrs. William E. Keller was plaintiff and Eva R. Roth and the Bank of North St. Joseph were defendants, and to bring with him certain taxbills mentioned in the petition in said cause, which the plaintiff therein sought to have cancelled.

-It appears that when said cause was called for trial by Hon. C. A. Mosman, the judge of said court, the plaintiff announced ready for trial, provided the taxbills called for in the subpoena were in court. Petitioner was then called to the witness stand and was asked .if he had said taxbills and he answered that he did not have them when the subpoena was served and had not had them since that time in his possession or under his control. He declined and refused to answer when he last had them or how shortly before the service of the subpoena duces tecum upon him. Petitioner at all times objected to being interrogated because there was no case on trial. He insisted he was there to obey the subpoena duces, and it would be time enough when the plaintiffs and defendants had announced ready and the trial was begun tó ask him for said taxbills, and plaintiff had no right to subject him to said examination in this manner before announcing ready in the cause and proceeding to trial.

After a lengthy parley between the opposing counsel, the court and the witness, the court finally directed him to answer whether he had said taxbills in his possession when a notice to produce them had been served upon him prior to the service of the subpoena duces, and petitioner refused on the ground that no foundation had been laid for such an order; that section 738, Revised Statutes 1899, provided how plaintiff should proceed, but in any event he had stated he did not have the taxbills when the subpoena duces was served on him, nor had he possession of them since that time, they were not in the possession of any agent of his or subject to his control, and such a proceeding "would be futile and unavailing, and he therefore requested the court not to require him to answer further under the circumstances, but the court required him to do so, and upon his refusal the court ruled it would commit petitioner for contempt.

Thereupon the following commitment was entered of record and was issued by the court:

“In the Circuit Court of Buchanan County, Missouri, Division No. One.
“Mrs. William F. Keller, plaintiff, vs. “Eva Roth et al., defendants.
No. 18,858.
“State of Missouri, plaintiff, vs. “Samuel S. Shull, defendant.
“Now at this time Samuel S. Shull being in contempt of court, having treated the court disrespectfully in refusing to answer proper and legal questions propounded to him in this case while a witness on the witness stand in the case of Keller, plaintiff, v. Roth et al., defendants, No. 18,858, after it had been repeatedly ruled by the- court that he should answer them and after being admonished by' the court that in the judgment of the court the questions were legal and proper and declining and refusing to answer them or any of them saying to the court that he did not thintr the questions were proper and legal and that he would not answer them, and that he willfully and intentionally refused to answer such questions as were propounded to him after it had been decided by the court that the questions were legal and proper and should be answered by him as a witness;
“It is hereby ordered and adjudged that the said Samuel S. Shull is guilty of contempt of court in treating the court disrespectfully and he is hereby committed to the jail of Buchanan county and the sheriff of said county is hereby commanded to take charge of the body of the said Samuel S. Shull and commit bim to jail and there safely keep him for a period of five days unless he shall in the meantime before the expiration of said five days come into court and make answers in court to the questions propounded to him.
“A true copy — Attest:
“Ambrose Patton, Clerk.
“(Seal.) By J. H. Farris, D. 0.”

By virtue of this commitment the sheriff took petitioner into his custody and committed him to jail and thereupon petitioner sued out this writ of habeas corpus and the sheriff has made his return and both parties have submitted the case to this court upon briefs.

Two grounds are advanced by the petitioner for his discharge, to-wit: First, the court had no jurisdiction to adjudge petitioner guilty of contempt for refusing to answer the questions asked, because the cause of Keller v. Roth was not on trial and no question was up for decision, and the questions were irrelevant to any issue in said cause. Second, because the said commitment is void upon its face for the reason that it fails to state the facts which constitute a contempt of court.

Considering them in their reverse order, does this commitment comply with our statute “which provides, “Whenever any person shall be committed for any contempt specified in this chapter, the particular circumstance of his offense shall be set forth in the order or warrant of commitment”?

Section'3576 provides, “It shall he the duty of the court or magistrate forthwith to remand the party, if it shall appear that he is detained in custody: .... third, for any contempt, specially and plainly charged in the commitment, by some court, officer, or body, having authority to commit for a contempt so charged;” by section 1616, it is provided: “Every court of record shall have power to punish, as for a criminal contempt, persons guilty of any of the following acts, and no other: first, disorderly, contemptuous or insolent behavior, committed during its sitting, in immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority; second, any breach of the peace, noise or other disturbance, directly tending to interrupt its proceedings; third, willful disobedience of any process or order, lawfully issued or made by it; fourth, resistance willfully offered by any person to the lawful order or process of the court; fifth, the contumacious and unlawful refusal of any person to be sworn as. a witness, or when so sworn, the like refusal to answer any legal and proper interrogatory.”

Contempt of court is “a specific criminal offense and a fine imposed is a judgment, in a criminal case. The adjudication is a conviction, and the commitment in consequence thereof is execution.” [Church on Habeas Corpus (2 Ed.), sec. 308; Ex parte Kearney, 7 Wheat. 38.] It is in recognition of this principle that the General Assembly, by the foregoing statutory provisions, requires that when a citizen is committed to prison for a contempt the commitment itself shall contain “the particular circumstances of his offense,” or in the language of section 3576, the contempt itself must be plainly and specially charged in the commitment. When the commitment in this case is tested in the crucible of the law it is found to fall far short of the requirements of the statute. Similar statutes are found in other States. If We look at the recitals of the order leading up to the adjudication of the contempt there is no effort made to state the particular questions, the refusal to answer which constituted the contempt. We are simply told that the petitioner had treated the court disrespectfully in refusing to answer proper and legal questions propounded to him. It is not even found that said questions were material and pertinent, but aside from this last consideration the statute requires the facts themselves to be stated, not merely the¡ court’s' conclusion that the questions were legal and proper, and when we come to the adjudication of the contempt itself, it is not even put upon the ground of the refusal to answer questions, but the finding and the only finding is that petitioner had treated the court disrespectfully. In what manner or how the petitioner treated the court disrespectfully the court did not adjudge and state in its judgment. If it should be said, it can be inferred by the matter of inducement set out in the record, the answer of all the courts is that as this is a criminal proceeding by which the citizen is deprived of his liberty, presumptions and intendments will not be indulged in order to sustain a conviction for contempt of court. [Hawes v. State, 46 Neb. 149; Batchelder v. Moore, 42 Cal. 412.] In Wilcox v. State, 46 Neb. 402, the witness refused to be sworn and testify. He was prosecuted for contempt and the court found him guilty. On review the Supreme Court referring to the statute which provided that “the contumacious and unlawful refusal of any person to be sworn or affirmed as a witness and when sworn or affirmed, the refusal to answer any legal and proper interrogatory,” held that a judgment of contempt which found that the witness merely refused to be sworn and did not find that he also refused to affirm, was totally defective and that presumptions and intendments would not be indulged to sustain the conviction.

In California the statute requires that the court or officer make a statement of the facts. In Ex Parte Shortridge, 90 Pac. 478, the order committing an attorney for contempt recited that he “interrupted” the court proceedings without stating what he did and it was held it did not comply with the statute requiring the court to recite the facts. The court quoted with approval the statement of the Supreme Court in Schwarz v. Superior Court, 111 Cal. 106, to-wit: “The offense being criminal in its nature, both the charge and the finding and judgment of the court thereon are to be strictly construed in favor of the accused, ’ and hence the order of adjudication must state facts which show the prisoner guilty of contempt, not mere conclusions, and such is the obvious meaning and purpose of our statutes, sections 1619 and 3578, Revised Statutes 1899: [9 Cyc. 48 and 50.] Without further discussion, we think the judgment of contempt and the commitment are fatally defective in not finding and adjudging the facts which would show petitioner had acted so disrespectfully towards the circuit court as to constitute a contempt within the statute. It is settled law in this State, that one imprisoned for the violation of an order or judgment in excess of the jurisdiction of the court rendering it can be discharged by writ of habeas corpus. Having reached the conclusion that the commitment was insufficient in view of the stress of other work we deem it unnecessary to discuss and determine the other points pressed in the brief of counsel.

The prisoner is discharged.

Burgess and Fox, JJ., concur.


text:
    WILLIAM H. SEIBERT et al. v. E. L. HOPE et al., Appellants.
    Division Two,
    June 29, 1909.
    1. ADVERSE POSSESSION: Cotenancy: Limitations. To establish title in one cotenant, as against the others by adverse possession, there must be such outward acts of exclusive ownership, of an unequivocal character, as to impart notice to the others that an adverse possession is intended to be asserted against- them. Otherwise, the defense of the Statute of Limitations, however long the one cotenant may have occupied, managed and enjoyed the property and paid taxes thereon, will not avail.
    2. -: -: -: Thirty Years. The owner of eighty acres died, leaving six children. John bought the interests of three of them and occupied the land, managed it, collected the rents, appropriated its products, and paid taxes thereon for nearly thirty years prior to 1901, when he placed upon it a deed of trust under which it was sold in 1903 to defendant, who was at the sale notified that the heirs of John’s sister had an interest in the land. John was unmarried and lived with said sister for the twenty years prior to his death in 1902; and the other brother was absent from the neighborhood. No one ever heard John deny the ownership of either in a one-sixth each to the land, and defendant testified that he never heard John express himself as to the interest he had in it. John’s deed from one of the heirs made in 1874 conveyed all the land, but that deed was not recorded until 1894. Held, that the heirs of the sister and the grantees (in 1903) of the absent brother were not barred by adverse possession.
    Appeal from Cape Girardeau Circuit Court. — Hon. Henry C. Riley, Judge.
    Affirmed.

      John A. Hope for appellants.
    (1) In all the deeds in defendant Hope’s chain of title, to-wit: the warranty deed from James E. to John R. McKee, dated August 19', 1874; the John R. McKee deed of trust dated November 15,1901, and the sheriff’s deed as trustee in said deed of trust, the grantors assumed to convey the whole title to the land, and as sole owners thereof; and each of these conveyances, in itself, operated as an ouster of plaintiffs and those through whom they claim. Long v. Stapp, 49 Mo. 508. (2) On August 19, 1874, James McKee conveyed the entire tract to John R. McKee, defendant’s grantor, by a deed purporting to convey the whole title, warranting the title and containing all the usual covenants of warranty. This ‘was an ouster of his alleged cotenants, and the Statute of Limitations! commenced to run from that time in favor of John R. McKee and his grantees. From the date of the deed until his death in March, 1902, the land was known as the John R. McKee place, and he was in the continuous possession and control of the land, claimed the whole title, and got all the rents and profits without accounting to his alleged cotenants for any part thereof. And it was assessed for taxes during all that time as his property. From McKee’s death until the foreclosure of the deed of trust it was in the exclusive control and actual possession of Theophilus Robb as devisee under his will; and since his purchase at the sale under the deed of trust defendant has been in the continuous, exclusive, adverse, actual possession • of the land. It follows from these facts that plaintiffs’ alleged interest has long since been barred by limitations. Sec. 4262, R. S. 1899. (3) For thirty-one years, from 1873 to 1904, inclusive, the land was assessed for taxes as the property of John R. McKee. It is not pretended that plaintiffs or Mr. Seibert or Montgomery McKee, through whom .plaintiffs claim, ever paid a cent of taxes on the land. Under this view of the case, and considering- the long, adverse, actual possession of the land by defendant, and his grantor, John R. McKee, defendant is the owner of the whole. See. 4268, R. S. 1899'; Bank v. Dandridge, 12 Wheat. (U. S.) 64; Long v. Mining Co., 68 Mo. 432.

      Wilson Cramer for respondents.
    (1) Euphrasia Seibert, formerly Euphrasia McKee, and E. M. McKee, from whom plaintiffs derive title, and John R. McKee, under whom defendants claim, were tenants in common, having inherited the land from their father, Ewing Y. McKee. (2) While the evidence tends to show that John R. McKee controlled the land and collected the rents, it also shows that the deed from James McKee, one of the brothers, to John R. McKee, relied upon as showing ouster, which is dated August 19', 1874, was not recorded until March 1, 1894, nearly nineteen years later; that there were no buildings on the place; that John R. McKee, who died in 1902, for the last eighteen or twenty years of his life lived with his sister Euphrasia Seibert, and after her death in January, 1901, with her husband, Wm. H. Seibert, up to the time of his own death; that Euphrasia Seibert was continually asserting her rights; that E. M. McKee had removed from the neighborhood and was living at the city of Cape Girardeau; that John R. McKee at no time denied the rights.of his sister and brother, but, on the contrary, recognized them in 1888.
   GANTT, P. J.

This is an appeal by defendants from a judgment of partition by the circuit court of Cape Girardeau county of the southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter of section 13, in township 33, range 12, among some of the heirs at law of Ewing Y. McKee and the grantee of certain of said heirs.

Ewing Y. McKee left surviving him as his only heirs at law the following named children: James, Lizzie, Susan, John R., Euphrasia and E. M. McKee. John R. McKee purchased the interest of James,. Lizzie and Susan McKee and thus became the owner of four-sixths of said land. On the 15th of Novemher, 1901, John E. McKee executed to defendant E. L. Hope a deed of trust under which the premises were subsequently sold, and Hope became the purchaser and received a trustee’s deed of date December 12, 1903.

At this sale public notice was given that the heirs of Euphrasia Seibert (formerly Euphrasia McKee) had an interest in the land. Euphrasia McKee married Hickman Eobb, by whom she had one son, Theophilus Eobb, one of the defendants in this case. Hickman Eobb died in 1872 and in January, 18801, his widow, Euphrasia, married plaintiff William H. Seibert, by whom she had two children, George E. and Lillian Seibert, plaintiffs in this ease. Mrs. Euphrasia Seibert died January 29, 1901, leaving as her heirs her husband, William H. Seibert and her three children, Theophilus Eobb and George E. and Lillian Seibert.

On the 14th of December, 1903, E. M. McKee, son of Ewing T. McKee, conveyed his undivided one-sixth of said land to his nephew and niece George E. and Lillian Seibert. The foregoing facts were alleged and there is no dispute about them, but defendant E. L. Hope in his answer alleges: “that he is now and was at the time of the institution of this suit in the actual, exclusive, continuous, open and notorious possession of said real estate adverse and hostile to the plaintiffs. That for more than thirty years prior to the institution of this suit this defendant and his grantor, John E. McKee, had been continuously in the actual, adverse, open, hostile, exclusive and notorious possession of said real estate, claiming to be the owners thereof and to have the whole title thereto, and therefore defendant states that plaintiffs’ claim to said land is barred by the Statute of Limitations in such cases provided.”

At the May term, 1905, the cause was tried to the court and the court found the several parties were entitled as follows:

E. L. Hope, as the owner of the shares of James, Lizzie, Susan and John R. McKee, to 24-36.

Theophilus Robb, as heir of Euphrasia (McKee) Seibert, subject to the curtesy of William Seibert, 2-36.

George E. Seibert and Lillian Seibert, as heirs of Euphrasia Seibert, subject to curtesy, 4-36.

George E. and Lillian, as grantees of E. M. McKee, 6-36.

William H. Seibert, as husband of Euphrasia (McKee) Seibert, curtesy in 6-36.

And rendered judgment accordingly and ordered the land sold for partition.

The evidence introduced on the issue of the Statute of Limitations, on the part of defendant Hope, tended to show that after purchasing the three shares, John R. McKee controlled the land and collected the rents, but outside of general statements that he owned the land, there was nothing to indicate that he disputed the rights of his sister Euphrasia or of his brother E. M. McKee. Mr. Hope, the defendant, testified that he never heard John R. McKee express himself as to the interest he had in the land. He concluded he owned it because he managed it and at one time offered to sell it.

Before defendant bought at trustee’s sale he was notified of the claim of Euphrasia’s children. No person ever heard John R. deny the interest of his sister and brother. On the other hand, in the year 1888, fourteen years after he had purchased his brother James’s share, he spoke of the interest of the other heirs, and at that time there were no other heirs save Mrs. Seibert and his brother E. M. McKee.

Moreover, he made his home for twenty years with his sister, Mrs. Seibert, and she always asserted her rights and he never denied her interest. It is true he managed the place, collected the rents and paid the taxes. There were no buildings on the land. While defendant attaches importance to the fact that James McKee sold the land and not his sixth therein, it is also true that this deed was made in 1874 and never recorded until 1894. The only question is whether the circuit court erred in holding that the evidence did not establish an ouster of Mrs. Euphrasia Seibert and E. M. McKee. By presumption of law the possession of one tenant in common is the possession of his cotenants, and it is the settled law of this State that, to establish title in one cotenant as against the others by adverse possession, there must be such outward acts of exclusive ownership of an unequivocal character as to impart notice to the cotenants that an adverse possession is intended to be asserted against them. [Warfield v. Lindell, 30 Mo. l. c. 282; Benoist v. Rothschild, 145 Mo. l. c. 408; Hutson v. Hutson, 139 Mo. l. c. 236; Coberly v. Coberly, 189 Mo. l. c. 15.]

In this last-cited case, it was said: “Mere verbal assertions of ownership will not do. Acts of an unequivocal character and of such inherent nature as to impart information and give notice to his cotenants of actual disseizin are required.” When it is remembered that John R. McKee was a single man; that he owned two-thirds of the tract; that his sister was a married woman and he made his home with her for twenty years and no one ever heard him deny her ownership to her one-sixth, or his brother’s right, the latter having left the neighborhood for many years, there is nothing to show that his possession was antagonistic to their rights. They might very naturally leave it to him to rent and pay the taxes, and it is not at all unusual that brothers and sisters permit a homestead to be managed in this manner, without a thought of being ousted of their title by an act or acts of kindness and consideration. John R. McKee never having denied his sister and brother’s rights, there is no foundation for defendant Hope’s claim of ouster.

We think the circuit court was amply justified in holding that the evidence did not establish an ouster by adverse possession and its judgment is affirmed.

Burgess and Fox, JJ., concur.


text:
    PETER O. GRIMES v. HENRY MILLER et al., Appellants.
    Division Two,
    June 29, 1909.
    1. MISJOINDER OF CAUSES: Ejectment: Partition. An heir who is denied recognition in his ancestor’s lands may bring suit in ejectment, and in another count in the same petition ask for partition.
    2. ABSENT HEIR: Presumption of Death. Where plaintiff was absent twenty-one years prior to the bringing of his suit in 1905 to establish his right to a one-fourth interest in his deceased mother’s land, he cannot be precluded, by any presumption that he was dead, from claiming against a person who purchased said land in good .faith after a decree in a suit in partition between the remaining heirs, to which he was not a party, where the evidence shows that, though his mother had died the owner in 1896, he did not know of her death, and did nothing towards inducing the defendant purchasers from the said three coparceners to buy the land. His mere absence from the State for seven years does not estop him.
    3. -: -: Prior Partition: Due Process of Law. Nor are his rights affected by the fact that in his absence, after the death of his mother, one of the other three heirs brought partition against the remaining two, and charged in her petition that she and the two defendants were the only heirs, and that allegation defendants admitted by their answer, and the trial court found them to be the only heirs and decreed partition among them, and the defendants bought from them relying upon said judgment in partition — the plaintiff not being a party thereto. To presume him dead and deprive him of his interest in the land because of such presumption and judgment, would be to deprive him of his property without due process of law.

      4. -: -: Proof. A presumption that an absent heir is dead, however long his absence, must disappear in the face of proof that he is alive. .
    Appeal from Buchanan Circuit Court. — Eon. C. A. Mosman, Judge.
    Affirmed.

      Mytton & Parkinson and Charles C. Crow for appellants.
    (1) A suit for partition of real estate cannot he maintained where it appears that defendant is in the exclusive possession of all the land. In this case plaintiff expressly alleges that defendants are in the actual and exclusive possession of the land, and the cause must he reversed for that reason. Lambert v. Blumenthal, 26 Mo. 471; Haeussler v. Iron Co., 110 Mo. 188; Colvin v. Hauenstein, 110 Mo. 575 ; Sheperd v. Fisher, 206 Mo. 249. (2) Plaintiff had disappeared fourteen years before the purchase by Henry Miller, had not been heard from by his family for thirteen years, and Henry Miller, acting on the legal presumption arising therefrom, of his death, is protected. Likewise is defendant Elgie Miller, his grantee. Plaintiff, having created this legal presumption by his own act, is now precluded from claiming against an innocent person purchasing land on the faith thereof after a judicial decree in partition between the remaining heirs at'law of the deceased owner. Defendants paid a full consideration for the entire tract of land, relying, as they had a right to do, upon the presumed death of plaintiff, and will be protected as against him who by his acts caused the legal presumption to arise upon which defendants acted. 22 Am. and Eng. Ency. Law, 1245.

      Chas. F. Strop, Henry M. Ramey, Jr., and Eugene Silverman for respondent.
    (1) Onr statute provides that “the plaintiff may-unite in the same petition several causes of action, whether they he such as have been heretofore denominated legal or equitable, or both, where they all arise out of: First, the same transaction or transactions connected with the same subject of action.” The subject-matter of this action is the land; the parties are the same and the count in ejectment was properly joined with the count in partition. B. S. 1899', sec. 593; .Lane v. Dowd, 172 Mo. 174; Morrison v. Herrington, 120 Mo. 668; Scarborough v. Smith, 18 Kan. 399; Den-ton v. Fyfe, 65 Kan. 2; Chandler v. Bichardson, 65 Kan. 152; Dellashmutt v. Parrent, 39 Kan. 548; 30 Cyc. 192. (2) It requires no citation of authority that an omitted party, notwithstanding the attempted partition, may assert his title or interest against any allottee or purchaser. 30 Cyc. 282. (3) Upon no theory can plaintiff be deprived of his interest in the land in suit. He was not a party to the partition suit, nor did he in any way induce the appellants to purchase the land, or estop himself from claiming his interest. The presumption of death is not a conclusive presumption, and upon the return of an absentee he is entitled to his property, even though administration has been had upon his estate under a statute authorizing administration after absence for seven years. Scott v. McNeal, 154 U. S. 49.
   GANTT, P. J.

This is an action in two counts, the first being ejectment for possession of an undivided one-fourth of the northeast quarter of the northeast quarter of section 26, township 56, range 35, all in Buchanan county, Missouri. The ouster was laid on the 19th of January, Í9Ó01. The second count "was one for partition of the same land.

It was admitted that the plaintiff was the son of Mahala Grimes and that the said Mahala Grimes at the time of her death owned said real estate, and that if plaintiff had any interest it was a one-fonrth interest, the only evidence offered by plaintiff being ns to the value of the monthly rents and profits. It appeared from the evidence offered by the defendant that in 1896 a partition of the premises was had among all the heirs of Mahala Grimes, deceased, except the plaintiff herein, and he was not a party to said partition suit. In that action the premises were divided in kind and the defendant became the owner of the interest of the distributees and heirs by deeds from them about a year after that partition was made. Upon this state of facts the circuit court rendered judgment for possession of the one-fourth interest in said property to which he was entitled as the son of Mahala Grimes. The cause then proceeded on the second count of the petition and the same evidence and the same admissions were offered together with the judgment in ejectment on the first count. And thereupon the court rendered a decree of partition adjudging plaintiff was entitled to one undivided one-fourth of the said premises and the defendant three-fourths. It was agreed and the court so adjudged that the lands could not be divided in kind without injury to the rights of the parties and accordingly it was ordered sold and the proceeds divided according to the rights of the parties as adjudged. From that judgment the defendants have appealed.

I. Section 593, Revised Statutes 1899', provides that “the plaintiff may unite in the same petition several causes of action whether they be such as have heretofore been denominated legal or. equitable or both, where they all arise out of: first, the same transaction or transactions connected with the same subject of action.” The subject-matter of this action is the land and the parties are the same and we can see no reason why the count in ejectment was not properly joined with the count in partition. [Morrison v. Herrington, 120 Mo. 665; Lane v. Dowd, 172 Mo. l. c. 174; Scarborough v. Smith, 18 Kansas 399.] Indeed it seems too plain for discussion that where an heir is denied recognition in the division of his ancestor’s land he has no other recourse except to bring his action in ejectment to compel a recognition of his right, and if he succeeds therein, there is no reason why he should not proceed at once with his right to partition.

II. The real reason alleged by the defendants for the reversal of this judgment is that the plaintiff’s family and the defendants who purchased from them, believed that the plaintiff was dead at tbe time that the defendant acquired her interest in the lands in controversy.

The evidence tended to show that the plaintiff left Buchanan county twenty-one years before December, 1905, and had not been heard from until 1900 or 1901. That in 1896 his mother, Mahala Grimes, died, the owner of the fee in this land, and in the same year a granddaughter of Mahala Grimes instituted a partition suit in the circuit court of Buchanan county against Cicero Smith and Homer Smith, alleging in her petition that she and the said Cicero and Homer Smith were the sole and only children and grandchildren of Mahala Grimes, deceased, and the said defendants Homer and Cicero Smith in their answers in said partition suit admitted the said allegations to be true and thereupon the court found that the said Effie Thomas and the said Cicero and Homer Smith were the sole heirs at law of the said Mahala Grimes, deceased, and judgment in partition was rendered and said land divided among the said Effie Thomas and the said Cicero and Homer Smith, and thereafter the said Cicero and Homer Smith and Effie Thomas conveyed their several interests in said lands to the defendant Henry Miller, and the said Henry Miller then conveyed the same to Elgie Miller. Defendants invoke the presumption of death arising from the absence of the plaintiff from Buchanan county, and insist that the plaintiff having created this legal presumption by his absence is now precluded from claiming against an innocent person who purchased said land in good faith after a decree in partition between the remaining heirs at law. As to the partition suit between Effie Thomas and Cicero and Homer Smith, the plaintiff herein was no party thereto and of course is not bound by the decree in that case. This is too plain for discussion. It is not pretended that there is any evidence of any inducement by the plaintiff to the defendants in this case to purchase the land, or that he did any act which would estop him from claiming his interest in this land, unless it is his absence from the State for more than seven years.

In Scott v. McNeal, 154 U. S. l. c. 49, the Supreme Court of the United States said: “The fact that a person has been absent and not heard from for seven years may create such a presumption of his death as, if not overcome by other proof, is such prima-facie evidence of his death, that the probate court may assume him to be dead and appoint an administrator of his estate, and that such an administrator may sue upon a debt due to him. But proof, under proper pleadings, even in a collateral suit, that he was living at the time of the appointment of the administrator, controls and overthrows the prima-facie evidence of his death and establishes that the court had no jurisdiction, and the administrator no authority; and he is not bound, either by the order appointing the administrator, or by the judgment in any suit brought by tbe administrator against a third person, because he was not a party to and had no notice of either. ’ ’

It was not shown that the plaintiff knew that his mother was dead or that she left an estate or that he had any knowledge whatever of the former partition proceedings between the other heirs. When plaintiff, left this State he had no property here that was liable to be affected by his absence and his mother did not die until twelve years after his removal from the State and there is absolutely no evidence, as already said, that he had notice of his mother’s death, or that she left an estate to which he was an heir. In the case of Scott v. McNeal, above referred to, the Supreme Court of the United States referred to the case of Lavin v. The Emigrant Industrial Savings Bank, 18 Blatchford, 1, in which it was held that letters of administration upon the estate of a living man, issued by the surrogate after judicially determining that he was dead, were null and void as against him; that payment of a debt to an administrator so appointed was no defense to an action by him against the debtor, and that to hold such administration valid against him would deprive him of his property without due process of law within the meaning of the fourteenth amendment of the Constitution of the United States. “This court concurs in the proposition there announced, ‘That it is not competent for a State by a law declaring a judicial determination that a man is dead, made in his absence and without any notice to or process issued against him, conclusive for the purpose of divesting him of his property and vesting it in an administrator for the benefit of his creditors and next of kin, either absolutely or in favor of those who innocently deal with such administrator.’ The immediate and necessary effect of such a law is to deprive him of his property without any process of law whatever, as against him, although it is done by process of law against other people, his next of kin to whom notice is given. Such a statutory declaration of estoppel by a judgment to which he is neither party nor privy, which has the immediate effect of divesting him of his property, is a direct violation of this constitutional guaranty.”

So in this partition suit between plaintiff’s brothers and niece; he was not made a party to the suit and of course his rights were unaffected thereby. We have given due consideration to the argument of defendant’s counsel that if this case is affirmed they will have paid their money for a portion of this land and will lose it, but this is no answer to the claim of the plaintiff that this is his property and that he has done no act and been guilty of no representation or inducement to mislead the defendants. He is not responsible for the fact that his brothers and niece made representations in their suit for partition to the effect that they were the only heirs at law of Mahala Grimes. To deny him his recovery in this case would be to deprive him of his property without due process of law, and leave him absolutely without remedy for the loss of his estate. On the other hand, the defendants had it within their power to require their grantors to give them warfanty deeds and a perfect abstract of title before investing their money in this land. The equity of the case coincides in our opinion with the plain law of the case and that is that the circuit court properly decreed this one-fourth of this land to belong to the plaintiff and its judgment is therefore affirmed.

Burgess and Fox, JJ., concur.