author: ROT, C. PEB CUBIAM.

text:
    W. D. MILES v. J. OGDEN ARMOUR, Appellant.
    Division Two,
    February 6, 1912.
    1. DEPOSITION: Failure to Give: By Non-resident Party to Suit: Pleadings Rejected. Section 6361, R. S. 1909, which provides that if a party to a suit, being duly summoned, refuse to give his deposition his pleading may be rejected, applies not only to residents, but to a defendant who is a non-resident and who has been duly notified by a notary of his own State to give his deposition there.
    2. TWO PENALTIES: One Impossible or Illegal. When two penalties are provided for an act, an offender cannot escape by showing that one of the penalties is illegal or impossible.
    3. DEPOSITIONS: Justification of Statutes by Court. The court refuses to enter upon a justification of the Missouri statutes as to depositions.
    4. CONSTITUTIONAL LAW: Depositions: Failure to Give: By Non-resident Party to Suit: Sec. 6361, R. S. 1909. Section 6361, R. S. 1909, requiring a party to a suit to give'his deposition and authorizing the court to reject his pleading for refusal so to do, does not violate the fourteenth amendment, nor does it deny to said party due process of law.
    Appeal from Jackson Circuit Court. — Hon. Hermann Brumbach, Judge.

      AeEIRMED.

      A. B. Urion and Frank Hagerman for appellant.
    (1) The action of the court below was not justified by the statute, (a) While the lower court issued a commission, it was directed to a notary public in Illinois. His power to act or to compel the attendance of, or the giving of testimony by a witness was wholly dependent upon the law of that State. Rapalje on Contempt, sec. 7; Wharton on Conflict of Laws, sec. 723; Martin v. People, 77 111. App. 311; In re Bushnell, 44 N. Y. Supp. 257, 19 Mise. 307; Spanish Consul’s Petition, 1 Ben. 225; 22 Fed. Cas. 854. No proof was offered of any Illinois statute upon the subject, and it has been there explicitly decided that .neither the notary nor court in Illinois can compel a witness to attend or testify before him. Martin v. People, 77 111. App. 315; Puterbaugh v. People, 131 111. 199. (b) Here the court below issued no order to appellant. He was not asked to appear before it. The order was from a notary in Illinois and under the rule there prevailing, whether or not he there appeared was solely a matter of voluntary action. Hawes on Jurisdiction, see. 223; Rapalje on Contempt, sec. 13. As the defendant was at the time without the State and beyond the reach of process of the court below, that court had therefore neither power nor jurisdiction to deal with him. In re Allis, 44 Fed. 216; Larimore v. Bobb, 114 Mo. 446. The reason for that rule is that no court can be empowered to act in matters beyond its territorial jurisdiction, (c) The statute (Sec. 6361), when properly construed, should not, therefore, be extended to the refusal to testify in another State. Its language is that if he refuses to testify then “besides being punished himself as for a contempt,” his answer may be stricken out. Hnless, therefore, he could have been by the court below punished as for a contempt, Ms answer conld not be stricken ont. The statute did not justify the action of tbe court below. That a Missouri statute was not intended to empower a Missouri court to deal with, or punish, for an act done in Illinois, is apparent from a slight review of the authorities. 13 Am. & Eng. Ency. Law (2 Ed.), 1051,1054; 22 Ibid. 1319; Hilton v. Guyot, 159 U. S. 163; Cooley on Constitutional Limitations (6 Ed.), 149; Sedgwick on the Const, of Stat. and Const. Law (2 Ed.), 56', 57; Story on Conflict of Laws (7 Ed.), secs. 7, 8. (d) Moreover, if the statute could be applied, it was an abuse of discretion to strike out the answer and render judgment. (2) The statute, if applicable, fails to accord to defendant due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States. Hovey v. Elliott, 167 U. S. 409; McVeigh v. United' States, 11 Wall. 259; Calder v. Bull, 3 Dali. 388; Bonaker v. Evans, 16 Ad. & E. 170; Capel v. Child, 2 Cromp. & J. 574. This doctrine has been frequently reaffirmed and applied. Golpin v. Page, 18 Wall. 350; Bennett v. Bennett, 208 U. S. 505; Fayerweather v. Ritch, 88 Fed. 719; The Fred M. Lawrence, 94 Fed. 1017, 1018; In re Parvine, 96 Fed. 197; In re Rosser, 101 Fed. 567; Mercantile Nat. Bank v. Hubbard, 105 Fed. 813; In re Mayer, 108 Fed. 599; Hendryx v. Perkins, 114 Fed. 825; Young, etc. Co. v. Brande, 162 Fed. 664; Sibley v. Sibley, 76 N. Y. App. 132, 78 N. Y. Supp. 745; McClatchy v. Superior Court, 119 . Cal. 413, 51 Pac. 699; Foley v. Foley, 120 Cal. 33; Younger v. Superior Court, 136 Cal. 682, 69 Pac. Rep. 486; Greig v. Ware, 25 Colo. 184; State v. Clancy, 24 Mont. 359. The notary had no power to force him to testify, nor to protect Mm from an inquisitorial examination, never asked him a question or sought to coerce his attendance.

      Warner, Bern, McLeod & Timmonds for respondent.
    (1) In the following eases pleadings were stricken ont for failure to appear and give testimony on behalf of an adversary, and the action of the trial' courts in so doing upheld: Larimore v. Bobb, 114 Mo. 446; Snyder v. Raab, 40 Mo. 166; Haskell v. Sullivan, 31 Mo. 435; Carr v. Dawes, 46 Mo. App. 351. (2) It nowhere appears, nor has there been any attempt to make it appear, that defendant had any good cause or excuse for refusing to testify; nor does it anywhere appear, nor has there been any attempt to make it appear that he had any meritorious defense to plaintiff’s cause of action. (3) The statute in question applies to this case, notwithstanding defendant resided in Illinois and it was sought to take his deposition in that State, (a) It is true there was no proof that under the laws of Illinois a notary public may compel the appearance of a witness; or that he could not do so. But, for the purposes of this case, it is wholly immaterial what may be the laws of Illinois in that regard. The deposition was not to be taken under the laws of that State, nor for use in the courts of that State, but under commission duly issued under the laws of this State, for use in a case pending in a circuit court of this State. The commissioner did not undertake to attach the defendant nor to punish him for contempt; , hence, it is wholly immaterial whether he did or did not have power to do so. (b) Defendant’s next contention is, that as he was beyond the territorial jurisdiction of the court, it had “neither power nor jurisdiction to deal with him.” If it be conceded that the court had no power to “deal with him,”- — that it had no power to fine or imprison him, yet it had jurisdiction . of the case, and had power to deal with it. Plaintiff had a right — a legal, substantial, valuable right — to procure and have for use in the suit, tlm defendant’s testimony. Defendant had no legal or moral right to deprive him thereof. It was not only within the power of the court, but it was its duty, to see that defendant did not unjustly or wrongfully deprive him of that right, (c) The next contention is that the statute does not extend to a refusal to testify in another State. This contention overlooks the fact that our laws guarantee to any party to a suit pending in our courts, the right to have and use the testimony of his adversary, wherever he may be. And, recognizing that an adversary may sometimes, through stubbornness or meanness or personal ill-will, or for some other unjust and inexcusable reason, deprive the other party to the suit of his just and lawful right in that regard, our laws also provide a means for the protection of that other party; and, in applying and enforcing that statutory right, the court is dealing with a case over which it has jurisdiction. If this were not the law, how easy it would be in some cases, for a party to a suit to use our courts of justice as instruments of wrong-doing. In the consideration of this point, it must be remembered that defendant was in court, (d) Defendant’s next contention is that if the statute can be applied in this case, it was an abuse of discretion to strike out the answer and render, judgment. As hereinbefore stated, it does not appear that defendant had, or pretended to have, any good cause or excuse for refusing to testify, nor was there -any showing nor any claim that he had any meritorious defense to plaintiff’s cause of action. If there had been any such claim or showing, the action of the court might have been different. Not only was there no showing or claim of meritorious defense, but, before judgment, “ plaintiff introduced evidence tending to prove all the allegations of his petition.” See the second point in this brief. But defendant suggests that there was no showing that the deposition was to be taken for use, and that he was not given permission to appear and testify under proper protection. There certainly can be no presumption that plaintiff was not acting in the utmost good faith; and it is perfectly apparent that defendant must have been possessed of actual knowledge touching the alleged contract sued on, as he was party thereto. Touching defendant’s suggestion that he was not given permission to appear and testify under proper protection, we suggest that it does not appear that he was in need of any protection, nor is there any claim or showing that he was willing “to appear and testify under proper protection,” or under any circumstances or conditions. (3) Defendant was not deprived of his property without due process of law. The case of Hovey v. Elliott, 167 IT. S. 409, is easily distinguishable from this. If defendant had any meritorious defense, or if he had any good reason to believe that a new trial would have resulted differently, or been of any benefit to him, it was his duty to make some showing or claim to that effect. Haskell v. Sullivan, 31 Mo. 435; Carr v. Dawes, 46 Mo. App. 351. See, also, Packing Co. v. Arkansas, 212 U. S. 322; Mayer v. Peabody, 212 U. S. 78; 22 Am. & Eng. Ency. Law, 1257; Kirby v. Tallmage, 160 U. S. 379; Pac. S. S. Co. v. Bancroft-Whitney, 94 Fed. 198; Brent v. Lewis, 88 Mo. 462; Pomroy v. Benton, 77 Mo. 87; Mun-ford v. Wilson, 19 Mo. 669; Ecton v. Ins. Co., 32 Mo. App. 61; Brake Co. v. Mfg. Co., 19 Fed. , 520; Baldwin v. Whitecomb, 71 Mo. 658; Mabary v. McClung, 74 Mo. 591; Conn. Ins. Co. v. Smith, 117 Mo. 261; Henderson v. Henderson, 55 Mo. 534; Cass Co. v. Greene, 66 Mo. 498; Leeper v. Bates, 85 Mo. 224; 16 Am. & Eng. Ency. Law, 1090. (4) The statute is not unconstitutional. The statute in question has been in force since the revision of 1835' — more than seventy-five years. It has many times been resorted to by litigants and enforced by trial courts with the express approval of the Supreme Court and of the Courts of Appeals of this State. In view of the universal acceptance and acquiescence of the bar and the courts of this State in its constitutionality, it ought not, at this late day, when questioned for the first time by one who shows no just excuse for depriving his adversary of his testimony, and who shows no meritorious defense, to be held unconstitutional. Rhodes v. Bell, 230 Mo. 138;' Venable v. Railroad, 112 Mo. 103; State ex rel. v. Laughlin, 75 Mo. 147; Shipp v. Clinger, 54 Mo. 239; Standard Oil Case, 194 Mo. 124.
   ROT, C.

— Plaintiff sued defendant by attachment in the Jackson Circuit Court on January 10, 1907, for $1816.28, balance claimed to be due on contract, with interest; and property of the defendant located in Kansas City was attached, the defendant being a nonresident.

On March 25; 1907, plaintiff sued out a commission to take depositions in the State of Illinois, and notice was duly given to defendant, and he was summoned on March 29, 1907, to appear, before the notary on April 2, 1907, to give his deposition. At the time and place given in the notice and summons, both parties appeared by counsel, and defendant’s counsel stated that his client refused to testify or give his deposition in the case. Plaintiff’s counsel thereupon informed defendánt’s counsel of the existence of our statute requiring a party to give his deposition, and on refusal, authorizing the court to reject his pleading. After which defendant’s counsel again stated that his client would not give his deposition.

On April 12, 1907, defendant, by Frank Hagerman, his attorney, entered his appearance and filed an answer, which was a general denial. By stipulation the attached property was released.

At the October term, 1907, the plaintiff presented his motion to strike out defendant’s answer on account of such refusal, which, motion set out the facts necessary to a hearing thereof. The defendant presented his suggestions in opposition to said motion, stating that the statute under which the motion was filed is in violation of the Fourteenth Amendment to the Federal Constitution, and of sections 4, 10' and 30 of article 2 of the Constitution of Missouri, and that the statute has the effect of depriving defendant of his property without due process of law.

On October 26, 1907, the trial court sustained plaintiff’s motion, denied defendant’s right to be further heard, and, having heard plaintiff’s evidence in support of his petition, entered judgment for plaintiff for the amount demanded and interest. Defendant has. appealed.

I. It is contended on the part of appellant that the laws of the State, ex proprio vigore, have no force beyond the State boundary, and that, as no statute of Illinois is shown giving power to the officer in Illinois to summon defendant and compel him to testify, the whole proceeding before the notary was, so to speak, coram non judice and void.

While the general doctrine of the limitation of the force of laws to the territory of the sovereignty may be conceded, yet within the State the laws and the courts often act upon and determine rights based upon acts and conditions done or existing outside the State.

Thus it is said: “Notwithstanding the rigor with which the English courts have applied the lex rei sitae to immovables, the court of chancery has claimed the right to compel parties, subject to its jurisdiction, to take specific action with regard to foreign real estate. Thus, an injunction has been granted to restrain the prosecution of claims for such foreign realty, specific performance of articles of agreement for sale of foreign realty has been enforced; and reconveyances and releases ordered of estates fraudulently acquirecl in foreign lands. On the other hand, to quote from Mr. Westlake, ‘the claim, to affect foreign lands . . . must be strictly limited to those cases in which the relief decreed can be entirely obtained through the party’s personal obedience; if it went beyond that, the assumption would not only be presumptuous but ineffectual.’ ” [1 Wharton’s Conf. Laws, sec. 288.]

It is also said, “When the personal property of a non-resident is within the State it is subject to its laws, and may be seized, attached, forfeited, as a thing guilty or hostile, the same as though the property of a citizen, and subject to the same rules and liabilities. The service of process or an order of court, made outside the boundary of a State, can have no more force than knowledge brought to a party in any other manner. [Brown on Jurisdiction, sec. 4.]

Section 6389, Revised Statutes 1909, says: “The commission shall authorize such officer to cause to come before him such person or persons as shall be named to him by the party suing for the same, and shall command such officer to examine such person touching his knowledge of anything relating to the matter in controversy,” etc.

Concede that the process for the witness called for in that section is no more than a notice as stated by Brown, yet it is that very notice which the statute has in view when it says, section 6361, Revised Statutes 1909, “If a party, on being duly summoned, refuse to attend and testify, either in court or before any person authorized to take his deposition,” etc. There is nothing to hinder the State from requiring from a non-resident, as well as from a resident, as a condition to his being heard in court, that he shall, on proper notice, give his deposition either in the State or out of it. We do not need the assistance of the laws or courts of Illinois in the enforcement of that statute.

The penalty which our statute provides is, not that he shall he fined or imprisoned by the Illinois notary, but that he shall be punished by having his pleading stricken out by the trial court.

The point is made that there had been no previous order of court requiring the defendant to testify. True there was no order of court, but there was a statute, and at the time and place when the deposition should have been given, counsel for plaintiff notified defendant’s Illinois counsel of such statute and of the consequences of such refusal.

II. The statute says “besides being punished himself for a contempt, his petition, answer or reply may be rejected,” etc.

Even if it be conceded, as it is not, that the court cannot “punish for a contempt” in such case, still such fact would not destroy the power of the court to strike out the pleading. If two penalties be provided for an act, the offender cannot wholly escape by showing that one of them is illegal or impossible. No authority for such a result has been shown us, and we know of none.

III. Complaint is also made that the Illinois officer had no power to protect defendant from an inquisitorial examination and that no limit was put upon the inquiry to be made. We will not enter upon an attempt to justify the wisdom of our statutes as to depositions. That has already been sufficiently done in Tyson v. Sav. & Loan Assn., 156 Mo. 588.

IV. The statute does not violate the Fourteenth Amendment to the Constitution of the United States, nor does it deny the defendant due process of law. The case of Hovey v. Elliott, 167 U. S. 409, is cited by appellant. That was a case where a party was ordered to pay over a fund, failing in which his answer was stricken from the files and a decree entered against Mm. It was held not to be due process of law. It must be admitted that the language quoted by counsel from the opinion of Justice (now Chief Justice) White in that case gives color to their contention. It is as follows: “A more fundamental question yet remains to be determined, that is, whether a court possessing plenary power to punish for contempt, unlimited by statute, has the right to summon ao defendant to answer, and then after obtaining jurisdiction by the summons, refuse to allow the party summoned to answer or strike his answer from the files, suppress the testimony in his favor, and condemn him without consideration thereof and without a hearing, on the theory ithat he has been guilty of a contempt of court. The mere statement of this proposition would seem, in reason and conscience, to render imperative a negative answer.”

That court in Hammond Packing Company v. Arkansas, 212 U. S. l. c. 351, upheld the court’s power to strike out a party’s pleading for failure to produce proof when ordered, and distinguished the case then under consideration from Hovey v. Elliott as follows: “In the former due process of law was denied by the refusal to hear. In this the preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense. The want of power in the one ease and its existence in the other are essential to due process, to preserve in the one and to apply and enforce in the other. In its ultimate conception therefore the power exerted below was like the authority to default or to take a bill for confessed-because of a failure to answer, based upon a presumption that the material facts alleged or pleaded were admitted by not answering, and might well also be illustrated by reference to many other presumptions attached by the law to the failure of a party to a cause to specially set up or assert Ms supposed rights in the mode prescribed by law'.”

That court then, proceeds to show that ever since the judiciary act of 1789 the Federal courts have proceeded under a section of that act giving them authority to require the production of books and papers in the possession of a party, and of giving judgment against such party on failure to comply, and that the validity of that act was recognized in Thompson v. Selden, 20 How. 194, and Boyd v. United States, 116 U. S. 616.

Appellant does not claim to have acted in ignorance of our statute. He admits that he refused to give his deposition and gave no valid reason for such refusal. He did not, at any time thereafter, offer to purge himself of the contempt by giving his deposition. He is in the attitude of complaining that he was refused a hearing while refusing to speak.

The judgment is affirmed.

Blair, G., concurs.

PEB CUBIAM.

— The foregoing opinion of Bov, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM.

license: Public Domain

text:
    JAMES H. WRIGHT v. WILLIAM S. GREEN, Appellant.
    Division Two,
    February 6, 1912.
    1. BANKRUPTCY: Sale of Heir’s Interest in Lands: Administration: Title to Real Estate. Atkinson was administrator of an estate to which he was indebted, though not to an extent equaling his own share of one-tenth in that estate. A hundred acres of land formed the greater- part of that estate, and this is. a suit under Sec. 2535, R. S. 1909, to determine interest and title in that which was Atkinson’s share of that land. In October, 1905, while he was administrator, Atkinson was adjudged a bankrupt and his' interest in said land was sold b.y the trustee to respondent. Appellant’s evidence tends to show that in the summer of 1905 he made some sort of agreement to purchase from the heirs the whole of this hundred acres and that in August or September he did some work upon the land. In October he had actual notice of the proceedings in bankruptcy and that the land in suit was affected. He took deeds from ail the heirs, including Atkinson, in January, 1906, paying all the purchase price except one-tenth. Held, that, since Atkinson, when adjudged a bankrupt, had not conveyed the legal title, and that title, upon the facts, being impressed with no equities in appellant’s favor, respondent took whatever title Atkinson inherited, that is to say, respondent owns one-tenth of the land.
    2. ADMINISTRATION: Title to Real Estate Purchased from Heir: Subject to Sale to Pay Debts: Bankruptcy. A title to real estate acquired by purchase from the heirs of an estate still in process of administration is subject to the exercise by the probate court of its power to sell lands to pay debts. The same rule applies to title acquired at a sale by the trustee in bankruptcy for one of the heirs.
    3. PRESUMPTIONS FAVORING JUDGMENTS: Time of Payment: Not Shown by Record. Where the time when a certain payment was made is material to the trial court’s decision in this case, and that time is not shown by the record, the usual presumption in favor of the judgment ought to be indulged.
    Appeal from Pike Circuit Court.— lion. David II. Eby, Judge.
    Affirmed.

      W. 0. Gray and Dempsey & McGinnis for appellant.
    (1) Atkinson had no interest in the land since bis indebtedness to the estate of Gertie M. Chamberlain exceeded what would have been his share in said estate. Leitman v. Leitman, 149 Mo. 112; Ayres v. King, 168 Mo. 244; Trabne v. Henderson, 180 Mo. 625; Duffy v. Duffy, 155 Mo* 144. (2) Appellant was an innocent purchaser for value without notice and was in possession under his contract for the purchase of land in controversy before respondent pretended to buy it. Young v. Montgomery, 28 Mo. 604; Price v. Hart, 29 Mo. 171; Cockrell v. McIntyre, 161 Mo. 59 ; Section 67, Bankrupt Act of 1898. (3) Respondent’s tender in a proper case would be effective only in respect to interest and damages. R. S. 1899', secs. 1564 and 1565. Tire trustee in bankruptcy took no better title to the' property of the Chamberlain estate than Atkinson had therein. Yeatman v. Savings Institution, 95 U. S. 764; Stewart v. Platt, 101 H. S. 731; Humphrey v. Yeatman, 198 H. S. 91; Hiscock v. Yarick Bank, 206 H. S. 38. (4) Atkinson being insolvent when he became administrator of the Chamberlain estate his indebtedness did not become assets. McCarty v. Frazier, 62 Mo. 263.

      J. D. Hostetter and Tapley & Fitsgerrell for respondent.
    (1) Atkinson’s interest in the estate amounted to more than he owed the estate. (2) Appellant was not an innocent purchaser. He purchased from Atkinson, the bankrupt, and accepted a deed from Atkinson and wife to the land in controversy and before any money was paid or anything done the appellant was notified that the respondent claimed to have bought the interest of Atkinson in the land and would get a deed for same as soon as the trustee was ordered to make it. (3) The tender of the respondent to appellant of the amount of the two notes Atkinson owed the Cham berlain estate and the refusal of Atkinson, as administrator, to accept the same, shows conclusively that Atkinson himself knew that his interest in the estate amounted to more than he owed the estate.
   BLAIR, C.

— This is a suit under section 2535', Revised Statutes 19.09, to ascertain and determine the title to a one-tenth interest in the southeast quarter of the southwest quarter of section fifteen, and north half of the north half of the southeast quarter of the southeast quarter of section sixteen, all in township fifty-two, range four, west, in Pike county, Missouri.

The facts are that Gertie Chamberlain was the owner of the land described and she died intestate April 25, 1905, leaving as her only heirs her father Samuel T. Atkinson, mother, and brothers .and sisters (or their representatives) to the number of eight, ten different persons apparently being entitled to participate in the distribution of the estate. The father, Samuel T. Atkinson, was appointed administrator. lie. was insolvent and indebted to Gertie Chamberlain at her death in the sum of $126, augmented by interest to about $136 at the time of the trial. The decedent’s estate consisted of one hundred acres of land, including that in suit, cash in the amount of $68.95', notes inventoried at $167.50, and household goods out of which $57.75 had been realized. Demands aggregating $271.50 had been paid, including a total of $38.13 for probate fees, attorney’s fees and administrator’s commission. Of this amount the administrator paid $134.80 out of his own funds. The notes inventoried were those executed by him and two signed by another distributee.

The value of the land was a much mooted question. Witnesses variously estimated it at from $12 to $15 per acre.

In October, 1905, Samuel T. Atkinson was, in the Federal court at Hannibal, Missouri, duly adjudged bankrupt, his interest in his deceased daughter’s land, including the land in suit, was duly sold by the trustee by order of the court having jurisdiction of the bankrupt’s estate, and respondent became the purchaser, receiving his deed in January, 1906.

Evidence for appellant tended to show that in the summer of 1905 he made some sort of an agreement to purchase from the administrator or heirs of Gertie Chamberlain the land in suit at $15' per acre, and that in August or September he filled some ditches and plowed about twenty acres. He had actual notice in October or November, 1906, of the proceedings in bankruptcy and that the land in suit would be affected thereby. In January, 1906, he accepted deeds from the heirs, including Samuel T. Atkinson, paying therefor the purchase price of $15 per acre except one-tenth thereof, which he retained and had at the time of trial.

Respondent tendered the amount of Samuel T. Atkinson’s indebtedness to the Chamberlain estate to Samuel T. Atkinson as administrator and renewed that tender in his reply filed in this case, but did not deposit the money in court.

The trial court adjudged respondent to be the owner of a one-tenth interest in the land and defendant to be the owner of the other nine-tenths subject to a mortgage he had executed.

The evidence was not sufficient to have warranted a finding that appellant had become the- equitable owner by reason of a contract of purchase and possession taken thereunder prior to the commencement of the proceedings in bankruptcy. The trial court was right in refusing to so find.

Samuel T. Atkinson had not conveyed the legal title at the time he was adjudged a bankrupt and that title being impressed with no equities in appellant’s favor by reason of the only facts set up, the trustee in bankruptcy took whatever title Atkinson inherited and that passed by the trustee’s deed to respondent.

Appellant could not and did not acquire the Samuel T. Atkinson interest by the deed in which Atkinson joined, for the reason that that interest had previously 'vested in the trustee when Samuel T. was adjudged a bankrupt, and had been sold to respondent under the order of the court of bankruptcy.

Nor was the sale to appellant made pursuant to the power of the probate court to sell to pay debts of the estate, but was made, in legal effect, by nine of the ten distributees, and the title acquired by appellant is still subject to the exercise by the probate court of the power mentioned, just as is the interest conveyed by the sale made in the bankruptcy proceedings to respondent.

The rights of the creditors of the Chamberlain estate, if creditors there are, to subject the land to the payment of their debts in the usual way was not affected by either sale, nor is it nor could it be affected by the judgment in this case.

Whatever effect Samuel T. Atkinson’s indebtedness to the estate of Gertie Chamberlain might otherwise have had toward diminishing his distributive share or interest (Duffy v. Duffy, 155 Mo. 144; Ayres v. King, 168 Mo. 244), it did not of itself devest him of all title. There was ample evidence to support a finding that his indebtedness was less than one-tenth of the whole, taking into proper consideration that indebtedness and that of the other distributees. Further, payment of his indebtedness prior to the institution of the bankruptcy proceedings would certainly have relieved Samuel T. Atkinson’s interest in the estate of the burden to which it would otherwise have been subject. Payment had been made prior to the trial. If made-prior to the time mentioned, plaintiff took Atkinson’s interest unencumbered. The time of the payment having been before the trial court, and not being shown by this record, the usual presumption in favor of the judgment ought to be indulged. In the circumstances it is not necessary to decide whether payment made prior to the sale by the trustee and after the institution of the bankruptcy proceedings would have sufficed. The trial court seems to have arrived at a just conclusion so far as the rights of plaintiff and defendant are concerned, and they alone are affected by the judgment.

As the matter stands, the estate has received the money Samuel T. Atkinson owed it, defendant has all of the land (nine-tenths) he has paid for, and plaintiff has received a small part of what Samuel T. Atkinson owes him — the balance being uncollectible.

There is no reversible error in the record and the judgment is affirmed.

Roy C., concurs.

PER CURIAM.

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

All the judges concur.


author: ROY C. PER CURIAM.

text:
    THOMAS C. CAMPBELL, Appellant, v. CITY OF CHILLICOTHE.
    Division Two,
    February 6, 1912.
    1. CITIES: Negligence: Sidewalks. The obligation of a city to keep its streets and. sidewalks in- repair' is not limited to the defects existing in the street. Dangerous ditches, excavations and walls by the side of a sidewalk are within the rule holding a city liable.
    2. -: -: Gate Over Sidewalk. ‘If a gate giving entry to a property-owner’s yard in a city was so constructed and used that at times, while no one was passing through or holding it, it would stand open on or across the sidewalk so as to be an obstruction thereto; and if its condition and use in that respect were such that an ordinarily prudent person, responsible for and knowing its condition and use, would have remedied the -same, then the city is liable, provided it had notice of that condition, or, by the exercise of ordinary care, could have- discovered it in time to remedy it prior to the injury.
    3. INSTRUCTIONS: Evidence: Circumstantial: Defective Gate: Notice to City. The fact that there was no direct evidence that the defendant city had notice of the position of the gate, does not, when there is circumstantial evidence from which the jury might infer notice, warrant the giving of an instruction “that there is no evidence . . . that the defendant city had any actual notice.”

      4. CITIES; Negligence: Evidence: Electric Light. That the electric street light was not burning, about a block from where plaintiff was injured by a defective gate, was not evidence of negligence on the part of defendant city, but it was proper evidence going to show why plaintiff did not see the obstruction.
    5. INSTRUCTION: No Objection Necessary. It is not necessary both to object to and except to the giving of an instruction, in order to have it reviewed on appeal. All that is required is that an exception be saved.
    Appeal from Linn Circuit Court. — Nora. John P. Butter, Judge.
    Reversed and remanded.

      Svott J. Miller and Charles M. Miller for appellant.
    (1) It is negligence to liang a gate so that when open it swings over and on the sidewalk. Decatur v. Hamilton, 89 111. App. 561; Bohen v. City of Waseca, 32 Minn. 176; Jerrell v. Wilmington, 56 Atl. (Del.)' 379; Berling v. Brooklyn, 120 N. Y. 93; Hume v. New York, 74 N. Y. 264; Mansfield v. New York, 119 App. Div 199; Kelley v. Kansas City, 69 Mo. 102; Barr v. Kansas City, 105 Mo. 550. (2) Instruction 7 is erroneous and should not under the evidence have been given. It was prejudicial to plaintiff and reversible error. Clark v. Brookfield, 97 Mo. App. 16; Deland v. Cameron, 112 Mo. App. 708; Cropper v. Mexico, 62 Mo. App. 388; Mans v. Springfield, 101 Mo. 613; Sneed v. Salesbury, 94 Mo. App. 429; Huff v. Marshall, 97 Mo. App. 547; Young v. Webb City, 150 Mo. 342; Market v. St. Louis, 56 Mo. 188; Shipley v. Bolivar, 42 Mo. App. 401.

      Frank W. Ashby and Frank Sheets c& Son for respondent.
    (1) If the gate was properly constructed, in reasonably good repair, and afforded, when closed, a reasonably safe sidewalk for public use, it was not a nuisance per se. Fehlkauer v. St. Louis, 178 Mo. 635; Stoetzelle v. Swearingen, 90 Mo. App. 588. (2) Instruction 7 was proper, as there was no evidence of actual notice, nor was there any evidence from which actual notice could be inferred. (3) And plaintiff recognized the fact that to allow him to recover, it was not necessary for him to prove actual notice to the city, and so told the jury by instruction 7, given at his request as follows: “And if the jury further believe, from the evidence, that the city of Chillicothe through its proper officers knew, or by the exercise of ordinary care would have known of the existence of' said gate.” So, too, did the court instruct the jury by instruction 8, given on behalf of defendant, which was a proper question for the jury. Carrington v. St. Louis, 89 Mo. 208; Eeedy v. Brewing Ass’n, 161 Mo. 541; Goodman v. Kahoka, 100 Mo. App. 278.
   ROY C.

— This is a suit to recover damages for personal injuries, tried in the circuit court of Linn county, at Brookfield, on a change of venue from. Livingston county. The verdict .being for defendant, plaintiff appeals.

The defendant is a municipal corporation under a special charter, having at the time of the trial a population of about ten thousand.

The facts constituting the negligence are stated in the petition as follows:

“That on or about February 20, 1906, and for a long time prior thereto there was a certain gate (which was about three feet high and three and one half feet long) so hung or fastened to a post or fence so that in opening said gate or when opened it would swing out over and stand on said street and sidewalk within and upon the east side of Elm street and in front of a house and' lot situated and abutting on said sidewalk and street known as No. 8-23 Elm street in said city. That said gate when so hung or fastened as aforesaid and when open on said street and sidewalk constituted a dangerous obstruction and a nuisance on said street and sidewalk and persons passing thereon were liable to be injured by reason of said gate and obstruction.
“Plaintiff further states on or about February 20, 1906, and for a long time prior thereto that the defendant carelessly and negligently maintained and caused or permitted said gate to be so hung or fastened as aforesaid, well knowing that said gate was dangerous, and that it would be open many times a day and night and when open it would stand out on and oyer said sidewalk and street and would constitute a dangerous obstruction and a nuisance in and upon said sidewalk and street and that persons passing along and over said sidewalk and street would be liable to be injured thereby, and that said gate and obstruction was negligently and carelessly caused or permitted by said defendant to be and remain in a dangerous and defective condition and to habitually stand open in and on said sidewalk and street for a great length of time prior to and including the 20th day of February, 1906; that the defendant knew, or by the exercise of ordinary care would have known of the existence of said gate and that it was so hung or fastened as aforesaid, and was in a defective condition, and habitually stood open, in and on said sidewalk and street and of the dangerous condition of said sidewalk and street by reason thereof, in time by the exercise of ordinary care to have caused said gate and obstruction to be removed and said sidewalk and street made secure and safe before plaintiff was injured, but carelessly and negligently failed and neglected to do so. ”

The answer is a general denial with a plea of contributory negligence.

Plaintiff was a citizen of Chillicotlie, a traveling salesman, and on returning home on the night of February 20, 1906, a dark night with a misting rain, he ran into or against a wooden picket gate in front of the residence of Theodore Carpenter and broke both bones of his leg just above the ankle. The gate was standing more or less open, out on or across the sidewalk. The nearest street light, about a block distant, was out. The gate was about two blocks from the public square and about one block from the plaintiff’s residence. The gate, having been removed from its place in the gateway, was rehung' sometime in November, 1905; and after being up a few weeks was knocked down or torn down in some way, and after sitting in the yard for a considerable time, was again rehung in its old place, with a strap hinge below and a door-screen hinge with a spring at the top.

Plaintiff’s evidence tended to show that it was hung the last time six or eight weeks before the injury, and that the top hinge was broken so as not to hold the gate for a week or more before the injury.

Defendant’s evidence tended tó show that the last hanging of the gate was a week or ten days before the injury, and the breaking of the top hinge two days before the injury.

Mr. Grace, a member of the city council, passed there'on the sidewalk three or .four times a day.

There was evidence tending to show that the gate usually stood open, and evidence to the effect that it was kept closed. A witness for defendant testified the gate would naturally lean out if not kept closed; and another testified that the latch would not fasten, but by pulling the gate in between the posts it would remain there tight.

Among other instructions the court gave the following at the instance of defendant:

“2, The court instructs the jury that the fact that the electric light was not burning on the corner of Calhoun and Elm streets at the time the plaintiff alleges he was injured, is no evidence against the defendant of any negligence, and you will not, therefore, consider it.
“3. The court instructs the jury that the city is not an insurer or warrantor of the condition of its sidewalks; nor is every obstruction thereon actionable, though it may have caused the injury sued for. And though you may believe from the evidence that the gate in question did, when open, swing over the line of the sidewalk, still, a property owner abutting on a sidewalk has a right to make a proper and reasonable use thereof, as long as such use is consistent with the easement of the public to pass over it. Therefore, if you believe from the evidence that the gate in question, when closed, afforded a reasonably safe sidewalk for public use, you cannot find for plaintiff because of the fact that said gate did, when in a proper condition of repair and opened for the purpose of enabling persons to pass in and out of the premises, opened and swung outward and partially across the sidewalk at a point where the injury is said to have occurred.
“7. The court instructs the jury that there is no evidence in this ease that the defendant city had any actual notice that the gate mentioned iu the evidence was standing upon or over the sidewalk.
“8. The court instructs the jury that if they believe from the evidence that the gate mentioned in the evidence was put in place on February 13, 1.906, then before the plaintiff can recover in this case, he must show to your satisfaction by a preponderance of the evidence not only that the gate was standing or hanging over the sidewalk after that date; but, also, that said gate was so standing open over said sidewalk a sufficient length of time prior to the accident that the defendant by the exercise of ordinary care, could have discovered the same and unless the plaintiff lias so shown your verdict must be for the defendant,”

I. The obligation of a city to keep its streets and sidewalks in repair is not limited to the defects existing in a street. Dangerous ditches, excavations and walls by the side of a sidewalk are within the rule holding a city liable. [Kiley v. Kansas City, 87 Mo. 103; Bassett v. St. Joseph, 53 Mo. 290; Halpin v. Kansas City, 76 Mo. 335; Wiggin v. St. Louis, 135 Mo. 558.]

In Kiley v. Kansas City, supra, it was held the duty of the city to guard against injuries to persons using a sidewalk by the falling of a dangerous wall standing on the side of the street; and in Franke v. St. Louis, 110 Mo. 16, the city was held liable for negligently permitting the wall of a burned building to stand on the side of the sidewalk with loose stones therein, which fell and injured the passerby on the sidewalk.

It has been very recently held in Massachusetts in Keating v. City of Boston, 92 N. E. 431, that a jury is warranted in finding that a coal-hole cover which when stepped upon will tip up unless fastened, is so likely to be unfastened that a city which used reasonable diligence after it had, or in the exercise of proper care might have had, notice of this condition, would not allow it to be there at all.

If the gate was so constructed and used that at times, while no one was passing through or holding the same, it would stand open on or across the sidewalk so as to be an obstruction to the sidewalk; and if its condition and use in that respect were such that an ordinarily prudent person, responsible for and knowing its condition and use, would have remedied the same, then the city is liable, provided it had notice of that condition, or, by the exercise of ordinary care, could have discovered it in time to remedy it prior to the injury. In order that a city be held responsible for injury by a falling wall, it is not necessary that the city should know that the wall is falling. It is sufficient that it knows the wall is so liable to fall that ordinary care requires its abatement. So, in this case, it was not necessary that the city should know that the gate was standing open at the particular time of the injury. It was sufficient if the city knew, or, by the exercise of ordinary care and caution, would have known, the condition and use of said gate, in time to remedy the same before the injury. Such being the law, instructions numbered 3 and 8 given for defendant were clearly wrong.

II. Instruction number 7 is erroneous. It is true that, there was no direct evidence of notice, but there was circumstantial evidence from which the jury might infer notice. This same instruction was held reversible error in the case of Clark v. Brookfield, 97 Mo. App. 16.

The evidence as above stated shows that Mr. Grace, a member of the city council, passed several times a day along the sidewalk by that gate, and from that fact the jury might have inferred that the city had notice. Besides, there was other evidence tending to the same effect.

III. Instruction numbered 2 is erroneous. The fact that the electric light was not burning was not evidence of negligence on the part of defendant, but it was proper evidence going to show why it was that plaintiff did not see the obstruction and the jury had a right to consider it for that purpose.

IY. Respondent makes the point that, although there was an exception to the giving of defendant’s instructions, there was no objection made to such instructions. It is insisted that under the ruling in Sheets v. Ins. Co., 226 Mo. 613, the question is not properly before the court. That case was expressly overruled as to that point in Harding v. Railroad 232 Mo. 444.

The judgment is reversed and the cause remanded.

Bond, G., concurs.

PER CURIAM.

— The foregoing opinion of Rot, C., is adopted by the- court.

All the judges concur.


author: KENNISH, J.

text:
    GEORGE McCORMACK, Appellant, v. ADAM E. MILLER.
    Division Two,
    February 6, 1912.
    1. ACCRETIONS: River as Boundary: Title. A running stream forming the boundary between lands otherwise contiguous, continues to be such boundary line, although the channel may ■ change, provided the change is by the gradual erosion and cutting away of its banks, and not by a sudden leaving of the old channel and the forming of an entirely new and different channel. And where the plaintiff owned land that was bounded by a running stream, and the stream gradually cut away a part of it and formed it on the other side of the stream up against defendant’s lands, the defendant is entitled to all additions to his lands along the river so made, as accretions thereto, though such “made” land comes within the descriptions contained in plaintiff’s deed at the time he purchased.
    2. -: Length of Time in Forming: Identity. In determining whether a riparian owner has title to land by accretion, the length of time in which it was forming is not important. If it was formed by a gradual, imperceptible deposit of alluvion, it is accretion, and becomes a part of the land against which it 'is deposited; but if the stream changes its course suddenly and in such manner as not to destroy the integrity of the land or so that the land can still be identified, it is not accretion and the boundary line remains the same as before the change of the channel.

      Appeál from Louisiana Court of Common Pleas.— Hon. David H. Eby, Judge.
    Affirmed.

      Pearson & Pearson for appellant.
    If the instruction in the nature of a demurrer to the evidence, was given upon the theory that the land sued for in the petition, and claimed and fenced by the defendant, was in the nature of accretions to his, defendant’s, land, the instruction is erroneous; and for that reason the judgment should be reversed and the cause remanded. (1) In order to entitle the adjoining* property holders to the right of possession of land left bare by the receding water, recession must be slow, gradual and imperceptible; in case of a sudden and sensible recession of waters the ownership will not be changed. 1 Am. & Eng. Enc. Law, p. 473. Accretion is a process of gradual and imperceptible increase of land caused by tlie deposit of the earth as sediment thereon by contiguous waters. 1 Am. & Eng. Enc. Law, p. 467; Cooley v. Q-olden, 117 Mo. 48; Busen v. Mowva, 61 Mo. 345-; Hahn v. Dawson, 134 Mo. 500'. There has been some conflict of authority as to the exact meaning of the word “imperceptible” which appears in the definition. It has generally been held that imperceptible increase means an increase so gradual and insensible that its progress in any moment of time may not be perceived. On the other hand the position has been taken, less reasonable, that imperceptible refers to the final result of accretion. 1 Am. & Eng. Enc. Law, p. 469; Doe v. Allen, 4 Dev. & B. (N. C. A. R.) 62; 3 Am. & Eng. Enc. Law, 523; Benson v. Morrow, 61 Mo. 348. Where the river suddenly changes its course, or deserts its original channel, the boundary remains in the middle of the old channel. Rees v. McDaniel, 115 Mo. 152; 1 Am. & Enc. Law, p. 473, sec. 2. There is very strong, clear and substantial evidence in this record, showing that Salt River has entirely forsaken its channel and formed an entirely new channel. For that reason, under the law, the boundary line so far as Salt River is concerned, of the land that McCormack bought, has not been changed. The evidence also shows very conclusively, that the changes made by Salt River in its channel, were very suddenly made; that the river deserted its original channel; and the boundary line of the McCormack tract of land, it being the land of which the property in controversy is a portion, so far as the river is concerned, remains where the river ran in 1891. (2) It is fundamental law of accretions that the lands to which they attach must, to entitle their owner to the accretions, be bounded by the river or stream.’ Any separation of the claimant’s land from the alluvion by the lands of another, however narrow the intervening strip may be, or whatever the size of claimant’s tract behind it, precludes his right to the accumulated alluvium. Sweringen v. St. Louis, 151 Mo. 348. The -doctrine of accretions will not permit the jumping of a wide creek, so that, if the creek always separated the “made” land from the shore, it cannot be said to be an accretion to the shore, that is, to be joined on to and becoming a part of the shore land. DeLassus v. Faherty, 164 Mo. 361. The evidence in this case is clear on the point that the northern portion of the land in controversy, never was bounded on the north by Salt River; but that it was bounded by the line dividing sections 24 and 25-. It is also clear from the evidence there was a space of ground between the southern bank of Salt River and the section line dividing sections 24 and 25, just north of the ground in controversy.

      Robb. A. May for respondent.
    Accretion is the process of gradual and imperceptible increase of land, caused by the deposit of earth, sand, or sediment thereon by contiguous waters. The land thus made is called alluvion. Where considerable quantities of soil are, by a sudden action of the water, taken from the land of one and deposited upon, or against the land of another, they are called avulsion. That ground which a river has added to your estate by .alluvion becomes your own, by the law of nations ; and that is said to be alluvion which is added so gradually that no one can judge how much is added in each moment of time. 1 Am. & Eng. Ency. Law, 467; Nebraska v. Iowa, 143 U. S. 359, and 145 U. S. 519. The test of what is gradual as distinguished from what is sudden, seems to be, that though witnesses are able to perceive from time to time that the land has encroached on the sea line, it is enough if it was done só that they could not perceive the progress at the time it was made. Angelí on Tide Waters (1 Ed.), 71; St. Olair Co. v. Lovingston, 23 Wall. (U. S.) 46: The riparian owner is entitled to the land formed by gradual and imperceptible accretions from the water, regardless of the cause which produced it. Tatum v. St. Louis, 125 Mo. 664; Benson v. Morrow, 61 Mo. 350'; Rees v. McDaniel, 115 Mo. 152. It naturally follows from the above observations that in order to entitle plaintiff to the land in controversy one of two things must have happened; either the channel of the river must have changed its course so as to cut off plaintiff’s land in a body and attach it to defendant’s land with its identity unchanged, or it must have been taken, as the bank caved in, and the identical particles deposited on the other side of the river, adjoining defendant’s land. The claim that either was done in this case is absurd. It is well settled law that, where after an original survey of land on a river has been- made, part of the same is washed away and afterwards new land re-forms within the limits of such survey, such land does not necessarily belong to the owner of the survey. If such remade land consists of accretions to the land of another, the latter may claim it, although it extended beyond his lines and into the survey so partly washed away. Naylor v. .Cox, 114 Mo. 232.
   KENNISH, J.

— This is an appeal from a judgment of the Louisiana Court of Common Pleas of Pike county, in an ejectment suit. The plaintiff sued for the possession of about fifteen acres of land in said county. The answer was a general denial. The case was tried at the May term, 1908, and at the close of plaintiff’s case the court gavean instruction in the nature of a demurrer to the evidence. There was a verdict and judgment accordingly, and plaintiff appealed.

It appears from the uncontradicted testimony that in the year 1891 appellant purchased “all of that part of the north half of section 25, township 55, of range 3 west, except what is known as Sugar Creek Island, ’ containing 160 acres more or less, which lies south of Salt River,” in Pike county, this State. He immediately went into possession of said land, and has occupied and cultivated it ever since. At the date of said purchase Salt River in part formed the northern boundary of said land. The land now owned by respondent, but then owned by his grantor, lay directly opposite and across the river, the river being the southern boundary thereof, except that in its northeasterly course the river crossed the north line of said section 25, leaving the section line, for a short distance east from that point, as the boundary line between -the two tracts of land. The general course of the river was in a southerly direction, but near where it reached appellant’s land it made a bend and changed to an easterly course, bearing a little to the north. Appellant’s land was underlaid by a stratum of sand, at a depth of about eight or ten feet, and in times of high water the river along the bend at appellant’s land washed away the sub-stratum of sand under its south bank and caused the land to cave in and be washed away. Sometimes one flood would cause the river to encroach upon appellant’s land for a distance of from twenty to seventy feet. The channel moved to the south, keeping pace with the washing away of the southern bank, and as the channel moved south land was formed on the other side of the river, on the southern boundary of respondent’s land. The fifteen-acre tract in controversy is land which at the commencement of the suit lay on the north side of the river. In 1891 the site of the land now in dispute was within the boundary lines of the land then purchased by appellant, but in the seventeen years intervening the land so purchased had been washed away and the land now on the north side of the river had .re-formed as before described.

A number of witnesses testified in behalf of plaintiff, including plaintiff himself, and ¡their testimony was, without exception, to the effect that the river had undermined and cut away land on the south side and formed land on the north side as heretofore described. Appellant introduced his deed in evidence and relied upon his title thereby acquired. No question of title by prescription is presented by the testimony.

The respondent, as riparian owner on the north side of the river, was entitled to all additions to his land along the river by the process of accretion. [Benson v. Morrow, 61 Mo. 345; Rees v. McDaniel, 115 Mo. 145; Hahn v. Dawson, 134 Mo. 581; 1 Farnham on Water and Water Rights, sec. 69.] A running stream, forming the boundary line between contiguous lands, continues to be such boundary line, although the channel may change, provided thé change is by the gradual erosion and cutting away of its banks and not by a sudcien change leaving the old channel and forming an entirely new and different channel. [Cooley v. Golden, 117 Mo. 33; Frank v. Goddin, 193 Mo. 390; Jefferis v. East Omaha Land Co., 134 U. S. 178; 3 Farnham on Water and Water Rights, see. 847.] In determining whether a riparian owner has title to land in controversy by accretion, the length of time in which it is in course of formation is not of importance. If it is formed by a gradual, imperceptible deposit of alluvion, it is accretion; but if the stream changes its course suddenly and in such manner as not to destroy the integrity of the land in controversy and so that the land can be identified, it is not accretion and the boundary line remains as before the change of the channel. [Benson v. Morrow, 61 Mo. 345; 29 Cyc. 348-349; Coulthard v. Stevens, 84 Iowa 241; Wallace v. Driver, 61 Ark. 429; County of St. Clair v. Lovingston, 90 U. S. 46.]

Applying the foregoing well established principles of law to the facts of this case, there can be no doubt as to the correctness of the ruling of the trial court in directing a verdict for the defendant. Accordingly the judgment is affirmed.

Ferriss, P. J., and Broivn, J., concur.


author: ROT, C. PER CURIAM.

text:
    THE STATE v. JAMES HOLMES, Appellant.
    Division Two,
    February 6, 1912.
    1. INDICTMENT: Voter: Fraudulent Attempt to Vote. An indictment which charges that the defendant, whose name is James Holmes, “unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did then and there offer and attempt to register under a name not his own, to-wit, under the name of Joseph Hanley,” etc., sufficiently charges that defendant attempted to register under a name not his own.
    2. INSTRUCTIONS: Abstract Proposition: Singling Out Part of Evidence. The trial court did not err in refusing the four instructions asked by defendant which are set out in the opinion. Number 4 was an abstract proposition without any explanation as to how the jury could apply it to the facts. Number 3 is not a correct statement of the law. Those numbered 1 and 2 single out portions of the evidence to the exclusion of the rest, which is not proper.
    3. VOTER: Attempt to Register Under False Name: Evidence. Appellant entered a polling place, told a judge of election that he wished to register, and then gave a false name. A clerk wrote the name in the original registration book. When defendant gave his address it was objected to as being the number of vacant property, and he left to go, as he said, and see what the number, was. Held, sufficient facts to show an offer or attempt to register as contemplated by Sec. 4441, R. S. 1909.
    4. -: Application for Registration. .The application to register contemplated by Sec. 6154, R. S. 1909, is the presentation of one’s self at the place of registration with the request to be registered.
    Appeal from St. Louis City Circuit Court. — Eon. ' Eugene McQuillin, Judge.
    Affirmed.

      Alroy 8. Phillips for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
   ROT, C.

— The defendant was convicted of offering and attempting to register in the city of St. Louis, in a name not his own, and sentenced to two years in the penitentiary, and has appealed.

The indictment, so far-as necessary to be read, charged that the defendant unlawfully, feloniously, willfully, knowingly, falsely and fraudulently, did then and there offer and attempt to register under a name not his own, to-wit, under the name of Joseph ITanley, and in such offer and attempt did then and there unlawfully, feloniously, willfully, knowingly, falsely and fraudulently pretend and represent to the said judges, clerks and officers of registration of said sixth election precinct of the fifth ward of said city of St. Louis, that his name was Joseph Hanley, and that he was one Joseph Hanley, and gave his address as 810 North Seventh street in the said election precinct, and that he was entitled to register and be registered on the books of registration and registers of said election precinct, as a qualified voter and elector of said election precinct, under said name of Joseph Hanley, and requested that said judges, clerks and officers of registration of said election precinct enter, write and register the name of him, the said James Holmes, on said poll books and books of registration of said election precinct, as Joseph Hanley and as a resident and qualified voter and elector of said election precinct, entitled to vote and register in said election precinct as Joseph Hanley, he, the said James Holmes, then and there well knowing that_his name was not Joseph Hanley.

There was a motion to quash the indictment which . was overruled.

The State’s evidence tended to show as follows:

On September 22,1910, there was duly held in each ward and election precinct of the city of St. Louis a general registration of electors, and appellant, whose correct name is James Holmes, entered the polling place of the 6th precinct of the 5th ward, at 817 North Seventh street about the noon hour, following a man named Martin Hyland. While Hyland was registering, appellant went up to Isaac Stockman, one of the Republican judges of election, and said he wanted to register. When Stockman asked him his name and address appellant replied that his name was Joseph Hanley, residing at 810 North Seventh street (across the street from the polling' place). Stockman then called the name to the two clerks of election, who turned in the registration books to the pages containing the names commencing with the letter "H.” At tlie request of James Byrne, the Democratic clerk, appellant repeated the name and then Byrne wrote it in the proper place in the original registration hook. At the request of Byrne appellant then repeated his address. Thereupon Benjamin Sacks, a Republican challenger, interfered and the following conversation took place:

“Sacks. You don’t live at 810 North Seventh street?
“Holmes. I sure live there.
“Sacks, That is upstairs over that furniture store. It is vacant.
"Byrne. You go home and get your right address and come back.
“Holmes. Well, I may possibly have the wrong number. I have only been living there a short time. I will go out and see what the number is.”

Thereupon appellant left the polling place and in about two minutes was brought back under arrest. At no time was appellant ever sworn, nor did he sign or in any other manner offer to sign the registry books. Other than the above there were no more questions asked and no more entries made in the registry books, and when appellant left in the custody of the officers, the name Joe Hanley was erased from the books.

The defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and he refrained from introducing’ any evidence.

The instructions fully covered the law in the case. The defendant asked the following instructions:

“1. The court instructs the jury that the giving of an address and a name, though not true, to a clerk of registration, is not an attempt to falsely register as charged.
“2. The court declares the law to be that the mere act of giving a false name and address is not an attempt nor offer to falsely register; and you are instructecl that if the State shows no more than this, it will be your duty .to acquit the defendant.
“3. The court instructs the jury that before they can find the defendant guilty under the charge herein, they must find and believe, and it must be proven by the State beyond a reasonable doubt, that the defendant did feloniously intend to register and that in pursuance of said intent he was sworn to answer questions put to him by the judges of registration; that he gave a false name and address; and that he attempted to sign the books of registration; and unless you so believe and find you must acquit him.
“4. The court instructs the jury that an attempt to falsely register is a criminal and felonious intent coupled with an act toward the doing of the act herein charged, but which failed in the perpetration.”

I. The appellant does not insist in this court that the indictment is not sufficient. It i§’ in all essentials the same as in State v. Dunwoody, 231 Mo. 48, which was held sufficient.

II. Instruction numbered 4 asked by defendant was an abstract proposition without any explanation as to how the jury could apply it to the facts in the ease. Number 3 is not a correct statement of the law. Numbers 1 and 2 single out portions of the evidence to the exclusion of the rest, which is not proper.

III. Appellant contends that the facts in this case clo not show an offer or attempt to register as contemplated by section 4441, Revised Statutes 1909, but that, if any offense is shown, it is an offer or attempt to make application to register under section 6154, Revised Statutes 1909. Under the first subdivision of section 6110, Revised Statutes 1909, it is provided that one of the judges “shall administer to all persons who shall personally apply to register” the oath therein prescribed. That occurs before any entries are made on the books. The words of the statute show that the application is complete before the oath is administered, because the oath cannot be made until after the application is made. We conclude that the application to register contemplated by the statute is the presentation of one’s self at the place of registration with the request to be registered. The defendant had so presented himself in this case and had requested to be rgistered. His application was complete. He could not be charged with an offer, or attempt to make application, because he had made such application.

This prosecution was properly brought under section 4441, and the evidence was sufficient to sustain the charge. It follows also that the demurrer to the evidence was properly refused.

We are unable in any way to distinguish this case from State v. Dunwoody, supra, where all the points made by appellant are decided against him, and, finding no error in the record, the judgment is affirmed.

Blair, G., concurs.

PER CURIAM.

— The foregoing opinion of Roy, C., is hereby adopted as the opinion of the court.


author: BROWN, J.

text:
    THE STATE v. CLAUDE TEETER, Appellant.
    Division Two,
    February 6, 1912.
    1. INFORMATION: Misjoinder: Seduction: Carnal Knowledge. If the State, before the court passes on a motion to quash an information, charging seduction under promise of marriage in one count and unlawful carnal knowledge in another, abandons the charge of unlawful carnal knowledge and elects to go to trial on the charge of seduction, the court does not err in overruling the motion to quash.
    2. STATEMENT: Improper Remarks: Seduction. A remark by the prosecuting attorney, in a prosecution for seduction under promise of marriage, in his opening statement to the jury, that "she was seduced February 28, 1909; on December 8, 1909, the child was born,” was not improper.
    3. IMPROPER REMARKS OF ATTORNEY: Must be Preserved in Bill. Remarks of the prosecuting attorney, to be considered on appeal, must be preserved in the bill of exceptions. To set them out in a motion for a new trial is not sufficient.
    4. CRITICISM OF ATTORNEYS BY COURT. Scolding remarks addressed by the court to defendant’s attorneys, in no wise indicating how he thought the case should be decided, while improper, cannot be said to so prejudice the minds of the jurors against defendant as to authorize a reversal of the judgment.
    5. INSTRUCTIONS: Should Ail be Considered Together. If the instructions given for the State, when read in connection with those given for defendant, correctly define the offense for which defendant is on trial, the judgment will not be reversed because of alleged errors in those given for the State.
    6. EVIDENCE: Impeachment: Independent Crime. An independent crime is not competent to impeach defendant or to establish his bad reputation.
    7. -: Independent Crime. Testimony which places upon defendant the burden of defending himself against a crime not mentioned in the indictment, is incompetent. So that where defendant was on trial under an' information charging him with seducing one girl under a promise of marriage, testimony of another girl to the effect that about the same time he seduced her under a promise of marriage, is incompetent and prejudicial, and cannot be brought in for the purpose of impeaching defendant’s reputation or otherwise.
    8. -: -: Seduction: Impeachment: Prejudicial Question. Defendant was on trial for the seduction under promise of marriage of a girl of good repute under eighteen years of age, and had testified, and thereupon the State, in rebuttal, in an attempt to prove that defendant’s reputation for morality was bad,, introduced another girl, who testified that she was unmarried, that she was eighteen years of age, that her child was present, that defendant’s reputation was bad, and was then asked if defendant did not, just prior to the time he is charged with seducing prosecutrix, seduce her under a promise of marriage. This question was ruled out. Held, that the testimony and question were highly prejudicial and reversible error.
    9. -: Seduction: Corroboration. The evidence of prosecutrix in the trial of a defendant for seduction under promise of marriage, must be corroborated to the same extent as the evidence of the principal witness in a prosecution for perjury; but this corroboration need not be by a witness who heard the promise of marriage, but may be by such conduct of the parties as usually accompanies a contract of marriage, or by statements of defendant to third parties. But the promise to marry must precede the seduction, and where the entire courtship was conducted at the home of prosecutrix’s aunt, a few miles from her own home, and she testifies that defendant, during his second visit to her, proposed marriage, that she accepted, and an hour or so later he seduced her, under said promise; and where there was no preparation for marriage, and the only evidence of a promise was statements made , by defendant to her aunt, after the promise is alleged to have been made, and those statements were of such a character as indicated an intention to marry at sometime with some undisclosed girl, the evidence of corroboration is, under the peculiar facts of the case, insufficient.
    10. COURTS: Sittings to be Public. The sittings of every court must be public, and every person may freely attend same.
    Appeal from Grundy Circuit Court. — Now. Geo. W. Wana/maker, Judge.
    Reversed and remanded.

      Hewitt S Hewitt for appellant.
    (1) The motion to quash the information should have been sustained. (2) It was highly improper and prejudicial for the prosecuting attorney in his opening statement to state “She was seduced on February 28, 1909; on December 8, 1909 the child was born.” (3) The defendant objected to the following statement of the prosecutrix, “Well, when he first tried to seduce me, I would not consent, and I told him I did not think it was right, and he so fully made me believe, and said we were going to be married, and wouldn’t be anything of it,” on the ground that it was a conclusion and not responsive and defendant moved that it be stricken out. Which objection and motion was overruled. The answer was not the statement of a fact, was the statement of a conclusion of the witness, and was not responsive to the question propounded. State v. Foley, 144 Mo. 618; State v. Eisenhour, 132 Mo. 145; Waddell v. Railroad, 113 Mo. App. 686. (4) The following question was propounded to Mabel French, by prosecuting attorney: “Q. Now I will ask you if prior to the 28th day of February, 1909, and just prior, if he did not seduce you under a promise of marriage?” The defendant objected for the reason that it was wholly improper, and only calculated to prejudice the jurors’ minds against the defendant, and he is not on trial for that, and moved to strike it out. The court refused to strike it out. State v. Coleman, 186 Mo. 158; State v. Beckner, 194 Mo. 295; State v. Richardson, 194 Mo. 342; State v. Eisenhour, 132 Mo. 145-. There were no circumstances in evidence which usually attend an engagement of marriage. Nowhere can there be found in the record any evidence of any statement or admission that he was engaged to be married to Ruth Bosely, outside of Ruth’s evidence. State v. Reeves, 97 Mo. 668; State v. Eisenhour, 132 Mo. 141; State v. McOassey, 104 Mo. 644; Zabriskie v. State, 43 N. J. L. 640; Rice v. Coin, 100 Pa. St. 28; State v. Drew, 179 Mo. 324. (5) It will not do to say that instructions on the part of the State are cured by those on the part of the defendant. That is assuming too much for the average juror. (6) The court failed and neglected to instruct the jury to what constituted corroboration, or define the word, corroborate. State v. Reeves, 97 Mo. 668; 3 Ency. Ev. 674; State v. McClaskey, 104 Mo. 644. (7) The testimony of the prosecutrix shows that the promise was conditioned upon pregnancy, and was therefore insufficient under the law.' People v. Yan Alstgue, 144 N. Y. 361; State v. Adams, 25 Ore. 172. (8) There was absent any corroborating’ evidence of the promise of marriage testified to by the prosecuting witness. There was an equipoise of oath against oath, and there can be no conviction. State v. Primm, 98 Mo. 373; State v. Brown, N. J. L. 414. The corroboration under the statute must be to the same extent as the principal witness in prosecutions for perjury. State v. Davis, 141 Mo. 522; State v. Primm, 98 Mo. 368; State v. Reeves, 97 Mo. 668; State v. Hill, 91 Mo. 423,

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State..
    (1) After the motion to quash was filed by appellant, the State entered a nolle pros as to the second count, and thereupon the trial court overruled appellant’s said motion, as the sole ground of his motion to quash was a misjoinder of offenses; the nolle pros cured the alleged error complained of. State v. Sharpless, 212 Mo. 176. (2) Appellant, in his brief, claims an objection on the ground that the answer was conclusive and not responsive to the question. It will readily be seen that the second ground not being responsive is not in the bill, and was not made at the time of the objection. All three of appellant’s cases cited in his brief are on the objection of not being responsive. Appellant has cited no case showing that it was reversible error on the ground of his objection, namely, that it was “a conclusion of the witness; let her state what was said.” If it is a conclusion, it is true that it is presumptively prejudicial, but it is manifest by the disclosures of the entire record that the opinion of the prosecutrix “that appellant bad tried to seduce her,” could not have reasonably resulted in any harm to appellant, and so it cannot be treated as prejudicial by this court. State v. Brown, 188 Mo. 464; State v. Coleman, 186 Mo. 160 ; State v. Cummings, 189 Mo. 643; State v. Lovell, 235 Mo. 343. If it is merely an opinion of the witness, it still might have been proper as such, as the seduction and the arts and blandishments may be partly by the manner as well as words, and in such a case the opinion of the witness would be competent, as she was qualified from opportunity and observation. 17 Cyc. 36; State v. "Williamson, 106 Mo. 171; Pulton v. Railroad, 125 Mo. App. 245; Waddell v. Railroad, 213 Mo. 17; Partello v. Railroad, 217 Mo. 645; State v. Nieuhaus, 217 Mo. 332; Merritt v. Tel. Co., 215 Mo. 308; Lindsay v. Kansas City, 195 Mo. 181; Hartpence v. Rogers, 143 Mo. 630. (3) As to the alleged improper remarks of the prosecuting attorney in his opening statement, it is sufficient to state there is no such ground in appellant’s motion for new trial, and, therefore, the same have not properly been preserved. State v. McKee, 212 Mo. 149; State v. Scott, 214 Mo. 261; State v. Wiese, 136 S. W. 240; State v. Brannon, 206 Mo. 636; State v. Marshall, 36 Mo. 400; State v. Hultz, 106 Mo. 41; State v. Grant, 144 Mo. 66. As to the prosecuting attorney’s remarks in his closing argument to the jury, it is sufficient to state that none of the argument appears in the bill of exceptions, and, therefore, has not been properly preserved. State v, Brooks, 202 Mo. 118; State v. Chenault. 212 Mo. 137; State v. Sassaman, 214 Mo. 736; State v. Baker, 209 Mo. 451; State v. DeWitt, 191 Mo. 58. Appellant complains of the following asked of a State’s witness in rebuttal: “Q. Now, I will ask you if prior to the 28th day of February, 1909, and just prior, if he did not seduce you under the promise of marriage?” It will be observed from an examination of the bill of exceptions, that no request was made to rebuke the State’s attorney for propounding the question, and no request made by appellant that the court should direct the jury to disregard it. The court treated his motion as directed towards the answer of the witness, and appellant’s counsel did nothing to correct the erroneous impression of the trial court. The case of State v. Coleman, 186 Mo. 158, is directly in point. (4) The corroboration of the promise of marriage need not be of such-force as would prove the fact of itself independently of the prosecutrix’s testimony, nor need the corroborating circumstances be equal to a second witness (State v. Hill, 91 Mo. 423; 35 Cyc. 1363, 1364) or equal or tantamount to those testified to by the prosecutrix. State v. Davis, 141 Mo. 522. The admissions of appellant that he had promised to marry the prosecutrix are corroborative. The statute does not require the testimony of two witnesses. State v. Sublett, 191 Mo. 163; State v. Whitworth, 126 Mo. 573; State v. Phillips, 185 Mo. 187; State v. Sharp, 132 Mo. 165; State v. Marshall, 137 Mo. 463. The language used in making the promise of marriage is not material, provided it was intended to convey that meaning and was so understood by the prosecutrix. 35 Cyc., 1336, 1337; State v. Sortviet, 100 Minn. 12; State v. Brinkhaus, 34 Minn. 285; State v. Hill, 91 Mo. 423; State v. MeCaskey, 104 Mo. 646; State v. Eisenhour, 132 Mo. 147; State v. Davis, 141 Mo. 525.
   BROWN, J.

— Defendant was convicted on a charge of seducing and debauching, under promise of marriage, one Ruth Bosley, an unmarried female. From a judgment fixing his punishment at three years in the penitentiary, he appeals.

The information contained two counts; in one, defendant is charged with seducing prosecutrix under promise of marriage; and in the other, with having unlawful carnal knowledge of said prosecutrix.

According to the evidence of prosecutrix, her entire courtship with defendant was conducted at- the home of her aunt, Mrs. Sarah Call, who resided a few miles from the home óf prosecutrix. She testified that on February 28, 1909, during his second visit to her, defendant proposed marriage; that she accepted, and an hour or so later, he seduced her under said promise. He continuéd his visits for about four weeks, when, upon learning that she was pregnant, his visits ceased. A child was born to her in December, 1909, which she says was the product of her intercourse with defendant.

There was substantial evidence tending to prove that prosecutrix was under eighteen years of age and of good repute when the alleged seduction took place; and there was also substantial evidence indicating that she was unchaste before defendant began keeping company with her.

Defendant was sworn as a witness in his own behalf, and in rebuttal the State introduced evidence tending to prove that his reputation for morality was bad.

Such additional evidence relating to the alleged promise of marriage as will be necessary for a full understanding of the case, will be noted in our opinion.

Defendant seeks a reversal of the judgment on the following grounds:

1. Because the court erred in overruling defendant’s motion to quash the information on the ground that it contained a misjoinder of causes of action.

2. Alleged erroneous instructions on the part of the State.

3. Improper remarks of the prosecuting "attorney.

4. Improper remarks of the court to defendant’s attorneys.

5. Failure of the court to instruct the jury upon all the issues of law arising in the case.

6. That the verdict of the jury is not founded upon the evidence and the law of the case; but was rendered by reason of the passion, prejudice and sympathy of the jury.

OPINION.

I. The court did not err in refusing to quash the information on account of the alleged misjoinder, for the reason that before the court passed on the motion to quash, the State abandoned the charge of unlawful carnal knowledge and elected to go to trial only on the charge of seduction. The defendant was not prejudiced by the existence in the information of a count which had been abandoned and upon which he was not tried. His conviction of seduction is equivalent to an acquittal of the charge of unlawful carnal knowledge.

II. Numerous alleged remarks of the prosecuting attorney are complained of; one of them being that in his opening statement to the jury he said of the prosecutrix: “She was seduced on February_28, 1909; on December 8, 1909, the child was born.” We fail to see the impropriety of this remark. It merely referred to certain facts which the State expected to prove and which it did attempt to prove. The very object of the prosecuting attorney’s opening statement was to call the attention of the jury to the facts which the State expected to prove and upon which it relied for a conviction.

III. Several other alleged improper remarks of the prosecuting attorney are noted in defendant’s motion for a new trial and urged here, but as said last mentioned remarks are not embraced in the bill of exceptions we cannot pass upon them. The motion for a new trial does not prove its own allegations, and when it refers to matters which transpired and were known to defendant before the case was finally submitted to the jury, such matters must be incorporated in the bill of exceptions. [State v. Steen, 115 Mo. l. c. 477; State v. James, 194 Mo. l. c. 279.]

IY. It is also alleged that the court prejudiced the minds of the jury against the defendant by addressing his counsel in such language as to indicate that he considered them only competent to practice before justices of the peace. But we are not cited to any case holding that remarks of a scolding nature by a court to attorneys are grounds for reversal. State v. Nelson, 181 Mo. 340; and other cases cited and relied on by defendant, are not in point, because they refer only to improper oral instructions and remarks made by courts directly to juries concerning their duties. It is highly improper for a court to allow a jury to find out on which side of a case its sympathies fall, or that it is personally unfriendly to a litigant or his attorneys, as such conduct might tend to prevent the jury from performing their duties in an impartial manner. Courts should treat all attorneys who have the right to appear before them with courtesy and respect so long as such attorneys be guilty of no contempt or misconduct. However, we do not believe the mere action of the court in criticising the defendant’s attorneys during the progress'of the trial would alone be cause for overturning the verdict, as its remarks did not indicate how it thought the case ought to be decided.

V. Defendant also assails the instructions given on the part of the State; but we find that these instructions when read with the instructions given at the request of the defendant, correctly define the crime for which defendant was on trial.

YI. Defendant also complains that the court omitted to instruct on certain issues of law arising in the case; but as we have decided to reverse the judgment, if any instructions were improperly omitted in the former trial they can be given upon a second trial; therefore we will not encumber the opinion with a further discussion of the instructions.

This brings us to the plea of defendant that the verdict of the jury is not based upon the evidence, but is the result of passion and prejudice. It is true that in addition to the trial court’s insulting' remark to defendant’s attorneys, which was not called for by any misconduct on their part at that time, certain other things transpired at the trial tending io prejudice the jury against the defendant. The State, under pretense of rebuttal, introduced one Mabel French, and attempted to prove by her that she had also been seduced by defendant under promise of marriage.

Aft.er introducing the mother of Mabel French and proving that defendant kept company with Mabel before the alleged seduction of the prosecutrix (Ruth Bosley) the State caused Mabel French to be sworn, with the following result:

“Q. "What is your name? A. Mabel French. Q. Miss Mabel French? A. Yes, sir. Q. And has that always been your name? A. Yes, sir. Q. Have you ever been married? A. No, sir. Q. Your child is here, isn’t it? A. Yes, sir. Q'. Do you know Claude Teeter? A. Yes, sir. Q. The defendant here? A. Yes. sir. Q. How old are you, Mabel? A. Eighteen. Q. When? A. Now. Q. Did you ever keep his company? A. Yes, sir.”

The defendant objected to this, as not being rebuttal.

“Mr. Knight: I am laying the foundation and qualifying the witness as to the defendant’s general reputation.

“The Court: Objection overruled.”

To the action of the court in overruling said objection, the defendant excepted.

“Q. Miss French, where do you live? A. About five miles northeast of Jamesport. . . .

“Q. And how close have you lived to Claude Teeter the last four or five years — the defendant? A. Well, a mile and a little over. Q. How long have you known him? A. About five years. Q. Known him intimately? A. Yes, sir. Q-. Are you acquainted with the people and neighbors there where you and he lived? A. Yes, sir. Q. You have talked with the people there? A. Yes, sir. Q. Are you acquainted with the general character of Claude Teeter in the neighborhood in which he resides, for morality? A. Yes, sir. Q. Tell the jury whether it is good or bad? A. It is bad. Q. Noio, I will ash you if prior to the 28th day of February, 1909', and just prior, if he didn’t seduce you under the promise of marriage?”

Upon objection of the defendant, the witness was not permitted to answer the last question; but enough evidence had been elicited from the witness, when accompanied by the physical exhibit of the child, to clearly impress the minds of the jury with the idea that defendant was guilty of another seduction in addition to the one for which he was then on trial. This evidence was highly prejudicial to defendant.

Not only was proof of an independent crime incompetent to impeach defendant or establish his bad reputation, but it placed on him the burden of defending against a crime' not mentioned in the indictment and which under the Constitution and laws he could not then be required to meet. [Constitution of Missouri, art. 2, sec. 22; State v. Phillips, 233 Mo. 299.]

It was inexcusable on the part of the prosecution to violate the well known rule of law that specific acts of lawlessness of which the defendant had not been convicted and which were not in any way connected with the offense for which he was then on trial, were not admissible to impeach him or prove his bad reputation. [State v. Gesell, 124 Mo. 531.]

It appears by what transpired at the trial that the State, being doubtful whether or not the defendant was guilty of the crime mentioned in the information, sought to introduce evidence of another crime of the same character, and if possible, secure a verdict of guilty on the evidence of such other crime.

We cannot lend our indorsement to such a line of procedure. The State has ample machinery for preferring indictments and filing informations against parties who violate its laws, and it should not attempt to convict anyone for a crime until it has preferred against him a proper charge, as required by the Constitution.

It was not within the power of the defendant to exclude the witness Mabel French and her bastard child from the courtroom. ‘ ‘ The sitting of every court shall be public, and every person may freely attend same.” [Sec. 3862, R. S. 1909; Boyd v. Railroad Company, 236 Mo. l. c. 81.]

In this case it is manifest that the State secured the attendance of Mabel French for the deliberate purpose of prejudicing the jury against the defendant by placing before them evidence of another crime alleged to have been committed by defendant and which evidence he was powerless to exclude and which he had no opportunity to rebut.

The evidence of the prosecutrix tends to prove that the defendant seduced her under promise of marriag’e, as charged in the information; but the Legislature, recognizing the. fact that some unmarried women as well as some unmarried men indulge in sexual intercourse for the sole purpose of gratifying their lustful desires, has 'provided that, in cases of seduction, the evidence of prosecutrix as to the promise of marriage must be corroborated to the same extent as the evidence of the principal witness in perjury. [Sec. 5235, R. S. 1909.]

This corroboration need not be by a witness or witnesses who heard the promise of marriage, but may be by such conduct of the parties as usually accompanies a contract of marriage, or by statements of the defendant to third parties.

In the case of State v. Eisenhour, 132 Mo. 140, it was held that evidence that defendant had paid prosecutrix weekly visits for a period of two years, during which time she kept company with no other man, was sufficient corroboration of her evidence that her ruin was consummated under promise of marriage.

In the case of State v. Hill, 91 Mo. 426, it was held by this court that defendant having kept company with the prosecutrix for four years before the alleged seduction took place, this protracted courtship itself was sufficient corroboration of the promise of marriage.

In the case of State v. Walker, 232 Mo. 252, the defendant courted the prosecutrix several months, and agreed to marry her. This agreement was broken off by the mutual assent of the parties. The courtship was later renewed and again discontinued. Still later the courtship was renewed and the prosecutrix seduced under a new promise of marriage made during a third period of courtship. In that case we held that the promise of marriage during the first courtship, together with some preparation for the marriage by prosecutrix, furnished sufficient corroboration that the seduction was accomplished under promise of marriage.

In the case at bar there is no evidence of any preparation for marriage by either defendant or prosecutrix, so that the corroboration rests entirely upon statements alleged to have been made by defendant in the presence of one Sarah Call, the aunt of prosecutrix, at whose home the entire courtship between defendant and prosecutrix was carried on.

The prosecutrix testified that the promise of marriage and seduction took place the second time defendant called upon her. This evidence itself is improb able and unsatisfactory. While it is possible for courtships to proceed at such a break-neck speed, it is certainly very unusual, and the fact that the prosecutrix yielded to defendant on such limited acquaintance, tends more strongly to support the contention of defendant as to her previous unchastity than to corroborate her evidence that a promise of marriage was the means of bring about the alleged seduction.

The defendant placed in evidence three letters written to him by the prosecutrix during the four weeks following the alleged promise of marriage and seduction. These letters were all couched in a very gushing and affectionate tone, but none of them contain any reference to the alleged contract of marriage.

The attempted corroboration of the promise of marriage was as follows:

Defendant called on prosecutrix one day during a rain storm, and Mrs. Call, at whose home the prosecutrix was stopping, told defendant that her little boy had said defendant would go through fire for prosecutrix; whereupon defendant replied that he would, but expected soon to make arrangements so he would not have to. Whether this statement referred to an agreement to marry the prosecutrix then existing or to an engagement he expected thereafter to make, does not appear. If the defendant’s remark referred to some future contract which he intended to make, or to some promise of marriage entered into after the alleged act of seduction, it is valueless as a corroboration. The promise of marriage must precede the seduction. [State v. Eisenhour, 132 Mo. 140.]

Mrs. Call, the aunt of prosecutrix, also- testified that on one occasion she told the prosecutrix to do something, and the prosecutrix having refused, the' defendant took hold of her and compelled her to obey her aunt; saying at the time, “I expect you to mind me, and you had just as well learn one time as another. ’ ’

The defendant also told said witness that the little sister of prosecutrix had said she was going to live with him and prosecutrix when they got married.

On another occasion, defendant told Mrs. Call that his mother had written him to court a nice girl and settle down and be a good boy; and that he had replied to his mother informing her that he was courting a nice girl and expected to get married. At the time of making this remark, defendant looked at prosecutrix and smiled.

All these remarks point in a somewhat indefinite way ,to a contract of marriage between defendant and prosecutrix, hut they also sound a good deal like the joking and extravagant talk which often takes place among young people during courtship when no promise of marriage exists. Defendant denied the promise of marriage and the conversations detailed by Mrs. Call.

We would feel strongly inclined to hold that the evidence of Mrs. Call is a sufficient corroboration of the promise of marriage if the statements she details had been made before the alleged seduction; but they were made afterward, and proof that a contract to marry existed at a date subsequent to the alleged seduction does not fully establish the fact that a promise to marry preceded the seduction, because ordinarily presumptions do not run backwards.

We might still be justified in holding the corroborative testimony sufficient, were it not for the evidence of prosecutrix that she yielded to defendant when he was yet a comparative stranger.

In this case the evidence of the prosecutrix as to the promise of marriage is of such a nature as to cast doubt upon her veracity; and under such circumstances the corroboration of her evidence as to the pro.mise of marriage should be clear and convincing. Under the particular facts of this case, we must hold that the corroborative evidence was insufficient.

As the case must be retried, we will say that the prosecuting attorney should confine his evidence to the crime charged in the information; and if he desires to convict' the defendant of seducing Mabel French, he should proceed against him for that offense by separate information.

The judgment of the trial court is reversed and the cause remanded.

Ferriss, P. J., and Kennish, J., concur.