text:
    THE STATE v. DANIEL TAYLOR, Appellant.
    Division Two,
    February 15, 1916.
    1. C'ARNAL KNOWLEDGE: Evidence of Good Reputation. Tn a prosecution for carnal knowledge of a female of previous chaste character, testimony to the effect that her general reputation for chastity in the community in which she lived, prior to the alleged occurrence, was good, is admissible. [Refusing to follow dictum in State v. Kelley, 191 Mo. 1. c. 691.]

      2. SPECIFIC ASSIGNMENT: All Law of Case. An assignment in the motion for a new trial that the court failed to instruct, the jury as to all the law arising upon the issues in the case, which does not specify upon what point the court failed to instruct, does not raise a point for appellate review.
    3. CARNAL KNOWLEDGE: Issuable Matters. In a prosecution for carnal knowledge of an unmarried female of previous chaste character between the ages of fifteen and eighteen years, the question of whether or not she consented to the acts of sexual intercourse is not material to the issue, and even though her testimony tending to show that she did not consent seems unbelievable, that does not affect a verdict of guitly. The material issues are (a) that she was an unmarried female between the ages of fifteen and eighteen years, that (b) defendant had sexual intercourse with her and (c) that prior to the act charged she was of chaste character.
    Appeal from Nodaway Circuit Court. — Hon. William C. Ellison, Judge.
    Affirmed.

      Shinnabarger, Blagg & Ellison for appellant.

      John T. Barker, Attorney-General, and Kenneth G. Sears for the State.
    (1) Prosecutrix’s character for chastity was in issue. It could he established by her general reputation regardless of any nice distinction between ‘ ‘ character” and “reputation.” 2 Wig-more on Evidence, section 1620; Carroll v. State, 74 Miss. 690; In re Vandiver, 4 Cal. App. 654; State v. Connor, 142 N. C. 705; State v. Kelley, 191 Mo. 691. ■ In the following cases the evidence was admitted but the question was not discussed. State v. Schenk, 238 Mo. 440; State v. Pipkin, 221 Mo. 458; State v. DeWitt, 186 Mo. 63. (2) The defendant did not properly object to a failure to instruct upon all the law; and since the fourth point in the motion for a new trial is not specific, the omission of the court, if any, is not open for review. State v. Conway, 241 Mo. 271; State v. Douglas, 258 Mo. 281.
   WILLIAMS, C.

Upon an information charging him with the carnal knowledge of an unmarried female of previous chaste character between the ages of fifteen and eighteen years, defendant was tried, in the circuit court of Nodaway County, found guilty, and his punishment assessed at two years’ imprisonment in the penitentiary.

The evidence upon the part of the State tends to establish the following facts:

In July, 1913, the date of the alleged crime, prosecutrix, fifteen years and six months of age, and unmarried, resided, with her - parents, on a farm in Nod-away county. At that time, the defendant, a young man, nineteen years of age, was in the employ of the father of the prosecutrix as a farm hand' and resided at the home of prosecutrix’s father very much the same as if he were a member of the family. One afternoon, about the middle of July, 1913, the father and mother of prosecutrix went to the town of Graham, on an errand, leaving at the house the defendant, the prosecutrix and four other younger children.' A short time after the parents left, prosecutrix was in one of the bedrooms doing some house work, when, she heard defendant enter the house. He immediately came into the bedroom where she was. Upon coming into the bedroom, he locked the door, pulled down, the blinds, threw her down on the bed, overcame her resistance and had intercourse with her. While this was occurring, three of the other children, including a fourteen-year-old girl, were out doors, at play. The youngest child, one year old, was in some other portion of the house.

After the transaction, defendant left the house and prosecutrix did not see him again until after her father and mother returned about four or five o’clock that afternoon. She did not tell her father and mother for the reason that she states the defendant had told her she would always regret it if she did. Prosecutrix was in good health and weighed about one hundred and thirty pounds and stated that she used all the force possible”; that she was not bruised or scratched nor was there any laceration of the parts. She stated that she did not scream because defendant told her not to and she was afraid of him.

Defendant continued, after the occurrence, to reside at the farm until August 6, 1913, upon which date he and the mother of prosecutrix had some disagreement, and defendant left. He again returned to work on the farm, December 1, 1913, and remained until some time in January, 1914.

Defendant had never offered prosecutrix any indignities prior to the occurrence in July, 1913, and never made any further advances except about Christmas time, 1913, at which time she refused him.

Sometime in January, 1914, the mother and sister of defendant visited the home of prosecutrix. It does not appear what was said by the parties on that occasion but, on the following day, the family physician was summoned and, after an examination, the physician thought that prosecutrix was pregnant. Later, on March 17, 1914, prosecutrix was taken to a maternity hospital in Kansas City and there, on April 17, 1914, she gave birth to a child.

Prosecutrix testified that she had never had intercourse with anyone prior to the above-mentioned time.

Evidence was introduced to show that the reputation of prosecutrix for chastity in ■ that community, prior to the alleged offense, was good. It further appears that she had not kept company with other boys.

George Herron, a neighbor of the prosecutrix, testified that, sometime in the winter following the alleged occurrence in the summer, defendant asked him what would be the penalty “.if a fellow that wasn’t of age would get a girl in a fix that wasn’t of age;’’ and asked what would be the consequences if he would marry her. The witness told defendant that if the girl was not of ag’e, he would have to get the consent of her parents before he could get a license to marry her. The defendant then said, “I guess I have a move coming.” Later, in another conversation, the defendant admitted that it wasc, the prosecutrix who was in trouble.

The evidence upon the part of the defendant tended to establish the following facts. Defendant, testifying in his own behalf, stated that there was nothing improper between prosecutrix and himself in the year 1912, but that about the first of May, 1913, he and prosecutrix were in the kitchen while he was making a prepartion for a sick horse and that “she kept hanging around me, standing up close to me and I put my arms around her and kissed her.” That a short time thereafter they met in the cellar while putting away the milk and defendant there hugged and kissed the prosecutrix. The prosecutrix then said, “If you are going to do anything, hurry up and do it or the folks will catch us.” That he then proceeded to have intercourse with the prosecutrix. Defendant denied the story related by prosecutrix concerning his having intercourse with her on the day that her parents went to town, but stated that, after the occurrence in the cellar, in May, he continued to have intercourse with the prosecutrix once or twice a week until he left the place in August, 1913; that prosecutrix would come to his room at night after her father and mother had retired. A few days after defendant quit working at the farm, he returned a buggy belonging to the father of prosecutrix and, at that time, he had a conversation with the prosecutrix in which he reminded her that she had told him that he was the only one with whom she had been intimate and then told her that “Cnrly” D'eaeon had told him that Clyde Goodpasture had told Deacon that he had been intimate with the prosecutrix, prior to the time that defendant had had intercourse with her. Defendant testified that thereupon, prosecutrix admitted to him that the accusation was true.

Five witnesses testified that defendant’s reputation for morality and chastity was good in that community, prior to the time of his arrest.

In rebuttal, the prosecuting witness denied that she had admitted to the defendant that she had been intimate with Clyde Goodpasture. Goodpasture testified denying that he had ever had improper relations with the prosecutrix and also denied that he had .■so stated to Deacon. Deacon testified that he did not remember of telling the defendant of this occurrence and stated that Clyde Goodpasture had never told him that he had had intercourse with the prosecutrix.

Two of the attorneys, representing the defendant, then testified that, a short time before the trial, Deacon was in their office and had told them that he had told the defendant of the alleged Goodpasture incident.

We have not been favored by appellant with a brief, but pursuant to our statutory duty in the premises, we will review the record and discuss the points raised in the motion for a new trial.

OPINION.

I. The first two grounds in the motion for a new trial assign error in the admission and exclusion of evidence. The only matter coming within g^gj. 0f these two grounds and of sufficient importance to merit discussion is the matter of introducing, over the objection and exception of defendant, the testimony to the effect that the general reputation of prosecutrix for chastity, in the community where she lived, prior to the alleged occurrence, was good.

One of the requirements of the statute under which defendant stands charged is the requirement that prosecutrix must be of previous chaste character.

While it is true that reputation and character are not synonymous, yet the former is always some evidence from which the latter may be inferred and is, therefore, admissible. The correct rule in this regard is stated in 2 Wigmore on Evidence, section 1620 (1), as follows:

“As to chastity or its opposite, no doubt has ever arisen, except in a single and peculiar action. In the statutory action or prosecution for seduction of a woman of ‘previously chaste character,’ the question first arises whether this ‘ character ’ is actual character or reputation. Assuming the former view to be taken, then, although actual character is the fact in issue, there is no reason why reptuation should not be admissible, as in all other issues, to prove the chaste or unchaste character. But in some jurisdictions the court’s adoption of the view that the actual character is the fact in issue has led it erroneously to exclude reputation as evidence of that character.”

To the same effect are the following authorities: Carroll v. State, 74 Miss. 688, l. c. 690; State v. Lokerby, 50 Minn. 363; In re Vandiveer, 4 Cal. App. 650, l. c. 654; State v. Connor, 142 N. C. 700, l. c. 705.

In State v. Kelley, 191 Mo. 680, l. c. 691, there appears to be a mere dictim to the contrary, which should not be followed.

II. The third ground of the motion attacks instructions numbered 1, 2 and 3. It would serve no. use^ Purpose to copy these instructions into the opinion. "We have carefully examined the same and find them to be in proper form and free from error.

III. The fourth ground complains because ■ the court failed to instruct the jury as to all the law aris- ’ ing upon the issues in the case. Since the above does not specify upon what point the court failed to instruct, it does, not raise a point for appellate review.

IV. The remaining grounds of the motion raise the question as to the sufficiency of evidence to support the verdict. The evidence is suffi- ' ciently stated in the foregoing statement. While some of the story of the prosecutrix appears to be very unusual and unbelievable, yet the unusual portion of her testimony refers to matters, not necessary to be proven to sustain a conviction, to-wit, her testimony tending to show that she did not consent to the act of intercourse. The question of whether or not she consented to the act of intercourse was not material to the issues. The material issues were whether she, as an unmarried female, between the ages of fifteen and eighteen years, had intercourse with defendant, as charged and submitted to the jury,, and, if so, was she of previous chaste character?

We are of the opinion that the evidence was amply sufficient to sustain the verdict.

The judgment is affirmed.

Roy G., concurs.

PER CURIAM. — The foregoing opinion by Wil-

liams, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: FARIS, P. J.

license: Public Domain

text:
    THE STATE v. W. F. ALLEN, Appellant.
    Division Two,
    February 15, 1916.
    1. ARRAIGNMENT: Appeal. The failure of the record to show either an arraignment or a plea will not, of itself, entitle defendant to a reversal, the record also failing to show that any objection was made at any time to a lack of arraignment or plea until the case reached the appellate court.
    2. -INFORMATION: Amendment of Statute After Crime: Substantial Rights of Defendant. It is error for the information to charge that the age of the prosecutrix was under fifteen years and that of defendant above seventeen years, in the , language of the amendment of the statute which raised the age of consent from fourteen to fifteen years and that of defendant from sixteen to seventeen years, where the act of carnal knowledge was committed before the amendment went, into effect; but under the Statute of Jeofails the error is, not reversible, unless it tends to the prejudice of the substantial rights of the defendant on the merits; and it does not so-prejudice those rights, where the evidence clearly establishes that the prosecutrix was at the time of the alleged crime above, fifteen years of age and the defendant above seventeen.
    3. CHANGE OF VENUE: Trial With Application Pending. • Where the record fails to show anything on the subject except, the 'bare fact that an application for a change of venue was. filed, it will not be held on appeal that the case was tried, while a formal and sufficient application was pending.
    4. -: —--: Matter of Exception. Complaint that the, case was tried while an application for a change of venue was. pending is a matter of exception, to be saved for review in fhe bill of exceptions.
    5. -: Jurisdiction of Another Judge: Agreement upon,. Special Judge. Where the record shows that an application for a change of venue was filed and that a judge of another-circuit was called by the regular judge to sit in the case and “was on the bench” and tried the case without objection, it. will be presumed, in the absence of a record showing to the contrary, that both the State and defendant waived the privilege of selecting a special judge; and, aided by the presumption of right action on the part of a court of general jurisdiction, it will be helil that the judge so called in had authority to try the case.

      6 EVIDENCE: Impeachment: Carnal Knowledge: Offer to Settle For Money. Evidence in a prosecution for carnal knowledge of a female under the age of consent that the prosecutrix proposed to defendant or his attorney, to leave the State and not appear at the trial if money were paid to her, and that her uncle after a conference with her and her mother and in pursuance to an understanding with them hunted up defendant and proposed to him, and later proposed to defendant’s attorney, that if money were paid to him he would take prosecutrix out of the State and see to it that she .did not appear at the trial, is competent for the purpose of impeaching both the prosecutrix and her mother as witnesses to the main fact of sexual intercourse, and the exclusion of such testimony is reversible error.
    Appeal from Stoddard Circuit Court. — Ron. E. M. Dearing, 'Judge.
    Reversed and remanded.

      Mosley & Woody and J. W. Farris for appellant.
    (1) The record in this case discloses that, on the Erst day of the March term, 1914, of the circuit court of Stoddard county, the same being the return term of the information, defendant filed his application for a change .of venue under R. S. 1909, see. 5198. That application has never been disposed of, but is still pending. The application being in due form, it became mandatory upon the court to grant the change, .and make such disposition of the case as required by .statute. R. S. 1909, secs. 5198, 5199; State v. Spivey, •191 Mo. '87; .State v. Shipman, 93 Mo. 147. (2) The cause was not set down for trial by Hon. W. S. C. Walker, the judge of said court, and there is nothing to show that Judge Hearing was called in by Judge Walker. R. S. 1909, sec. 5201; State v. Grillham, 174 Mo. 671. .(:3) Defendant was charged with violating section 2., page 219, Laws 1913. The offense, if committed at all, was committed during either the month of March or the month of April? 1913. Said section 2 did not become a law until June 23,1913, hence defendant could not have violated said law in March or April, 1913. Constitution, art. 4, sec. 36; State v. McMahon, 234 Mo. 611; State v. Schenk, 238 Mo. 429; State v. Howard, 175 S. W. 58; Neef v. McGuire, 52 Mo. 493; Ex parte Smith, 135 Mo. 223; State v. Finley, 187 Mo. App. 72. ■ (4) Under all the facts and circumstances detailed in evidence in this case, the character of the parties, the time and place where this offense is, according to the testimony of the prosecuting witness, alleged to have been committed, the conduct of the parties after the alleged commission, the time which elapsed, between the alleged commission and the date when prosecuting witness told her mother, the means used by her mother to compel her to make the charge, all go to show that the story of the prosecuting witness is an unreasonable one. The testimony is not sufficient to prove the guilt of defendant beyond a reasonable doubt, and his instruction in the nature of a demurrer to the evidence should have been given. State v. Jaeger, 66 Mo. 173; State v. Primm, 98 Mo. 368; State v. Burgdorf, 53 Mo. 65; Harper v. Railroad, 186 Mo. App. 296. (5) Defendant was not arraigned, therefore, his motion in arrest of judgment should have been sustained. R. S. 1909, sec. 5165; 12 Cyc. 344 ; 2 Ency. PL & Pr. 787; State v. Williams, 117 Mo. 379; Shelp v. U. S., 81 Fed. 694; Crain v. U. S., 162 Ú. S. 625; State v. Cisco, 186 Mo. 49; Secs. 22 and 30, art. 2, Constitution. ■

      John T. Barker, Attorney-General, and Bee B. Ewing, Assistant Attorney-General, for the State.
    (1) ■ The information is good. State v. Salts, 263 Mo. 308; Kelly’s Crim. Law & Practice, sec. 535; State v. Clark, 158 Mo. App. 489; State v. Nave, 185 Mo. 125; Sec. 4472, R. S. 1909. (2) Appellant was not arraigned, but he was present at the trial and made no objection or exception thereto. He offered evidence in his defense and also testified himself. By going to trial without objection, he waiyed arraignment. State v. O’Kelley, 258 Mo. 345; State v. Gould, 261 Mo. 694. (3) Appellant filed application for change of venue. The transcript does not disclose the grounds for the application, nor whether or not the trial court ruled thereon. Neither does it show that appellant made any objection or exception to the ruling of the court, or his failure to rule thereon. It does disclose that Judge Walker, the regular judge of the circuit, called in Judge E. M. Dearing of the Twenty-first Circuit and appellant went to trial without objection before the latter judge. Nor did appellant present the question to the trial court for review, either in his motion for *a new trial or in arrest of judgment. This record does not convict the trial court of error in this regard. Drainage District v. Richardson, 227 Mo. 252; Leslie v. Chase, 200 Mo. 263; Wolff v. Ward, 104 Mo. 127. (4) There was no reversible error in the trial court’s rulings upon admission and rejection of testimony.
   FARIS, P. J.

Defendant, convicted in the circuit court of Stoddárd County for a violation of the provisions of section 4472, Revised Statutes 1909, for that he had carnal knowledge of a female under the age of consent, after the usual motions for a new trial and in arrest of judgment, has appealed.

The information upon which this prosecution is bottomed was filed on the 5th day of February, 1914. It charges the defendant with committing the alleged offense in March, 1913. Except in the behalf discussed in the opinion, the information is conventional and we need not cumber the record with the whole of it, but we mention in passing that as to tbe ages of tbe persons involved it follows tbe amendment of 1913, which amendment went into effect subsequent to the date of the commission of the alleged offense.

The facts in brief, so far as they are pertinent • and so far as we do not set them out in our opinion, run thus:

Defendant is a physician and surgeon now practicing in the city of St. Louis, but at the time of the alleged commission of the offense charged, engaged, a portion o£ his time at least, in practicing his profession in Stoddard County, Missouri, and having offices at one time or another both in Dexter and in Bloomfield - in that county. Defendant while practicing in Stoddard County seems to have specialized in the treatment of diseases of the eye and was thus brought professionally into contact with’the prosecuting witness, one Hattie Allard, aged at the time set out in the information, sixteen years, lacking a few days. Having been treated by defendant for an affection of the eyes while he was in Dexter, she followed him to Bloomfield for the purpose, as the record shows, of having the treatment continued. She remained in Bloomfield for some five weeks taking such treatment, and while thus under the care of defendant the first sexual act of •defendant with her took place in the latter part of March or the first days of April, 1913. From that time :on, until November, 1913, as occasion offered, other acts of sexual intercourse occurred between defendant and the prosecuting witness, the last act occurring in the room of defendant at a hotel in Dexter on Thanksgiving Day, 1913. While the prosecuting witness and defendant were in this room, the mother of the former, suspecting the relations existing, slipped into an adjoining room and overheard suspicious noises which she deemed to indicate that defendant and her claughter were engaged in illicit intercourse. Going into this room the moment defendant unlocked the'door, she found, she tells us, prosecutrix sitting in defendant’s lap. Soon thereafter this prosecution was commenced. Other elements necessary to be proven are sufficiently shown by the record. The State showed a telephone conversation between defendant and the prosecutrix, and likewise a conversation between defendant and a Mrs. Kimbell, which to an extent corroborates the testimony of the prosecutrix.

. On cross-examination of the prosecutrix and likewise of her mother, who testified for the State, it was shown that for some five days after the mother had, as she says, caught her daughter and defendant in the compromising position mentioned, prosecutrix had continued to deny any illicit relations with defendant, and that it was not until the mother had slapped prosecutrix’s face repeatedly and otherwise physically maltreated her, that she confessed these relations.

The defense was not guilty in the broadest sense of the word, in this, that defendant denied ever having been intimate with prosecutrix and averred that the sole relation existing was that of physician and patient. The age of defendant is not definitely shown, but it is shown that he attended medical school four years prior to the year 1897 and that he graduated as, a physician and surgeon in that year. His general reputation for morality and chastity is shown by the record to be’ good and in no wise is this denied or controverted by the State.

Such' further facts as may be required to make clear the points discussed will be found set out in our opinion, at which place they may appositely serve to make clear our discussion of the questions mooted.

I. Defendant by Ms learned counsel contends that inasmuch as the record fails to disclose either an arraignment or a plea, he is for this entitled to a reversal out of hand. The record also showá that no objection was lodged anywhere touching the lack of an arraignment and plea till the case got here, and that defendant was tried in all respects just as if a formal arraignment and plea had been had — as they doubtless were, if we were permitted, as we are not, to speculate upon facts on which the record is silent.

Defendant’s learned counsel concede that the cases of State v. O’Kelley, 258 Mo. 345, and State v. Gould, 261 Mo. 694, are against tMs contention, but they cite and quote at some length from Crain v. United States, 162 U. S. 625, and largely upon the authority of the latter case, insist that we were wrong in the 0 ’Kelley and Gould cases, and urge us to. overrule the latter cases and get back to the good old technical rule of other days. We are not disposed to overrule the holding made in the O’Kelley case for the reason so ably urged upon us by counsel, or for any other reason; especially since about the time the O’Kelley-case was ruled, the Supreme Court of the United States in an opimon in which all concurred, overruled the case of Crain v. United States, supra, cited to us and relied on by counsel. [Garland v. State of Washington, 232 U. S. 642; see, also, State v. Garland, 65 Wash. 666.] Hence, we disallow this contention.

II. There is no doubt that an error occurs in the information, in that, while it was filed subsequent to the taking effect of the amendment of 19-13, Laws 1913, p. 219, it charged an 0jyerige committed in March, 1913, prior to the taking effect of said amendment. When the alleged offense occurred, the statute forbade carnal knowledge between males of sixteen years and upwards and unmarried females of previous chaste ■character between the ages of fourteen years and eighteen years. Pending the alleged commission of the crime and the filing of the information at bar, the amendment was passed and took effect, raising the age of the male from sixteen to seventeen years and that of the female from fourteen years as ■a minimum to fifteen years, to conform to the age of •consent statute defining statutory, rape amended by the same bill. In the information herein these ages are set out as seventeen years and fifteen years respectively, instead of sixteen and fourteen, as the law ■and the time of the facts required. The error conceded, the inquiry arises, is it reversible error? Clearly not, unless this error tends “to the prejudice •of the substantial rights of the defendant upon the merits.” [Sec. 5115, R. S. 1909.] The above provision of our Statute of Jeofails is obviously in point here. Since it is impossible to see wherein defendant was prejudiced by this error, the point should be disallowed. For we judicially notice from the facts in proof that defendant was over seventeen years of age in March, 1913; because he says he was in medical school four years and that he graduated therefrom in 1897,- and that he is married and had a son sixteen years of age at the time of trial. At the time of the carnal intercourse alleged the female was, as the proof likewise shows, a few days less than sixteen years of age. So since defendant was over seventeen years and prosecutrix was under eighteen years of age, an erroneous averment as to the statutory minimum which serves to differentiate statutory rape from carnal knowledge does not, in our view, prejudice defendant in any wise.

III. Complaint is made that the case was tried, while a sufficient and formal application for a change of venue was pending’. This complaint is not borne out by the record; for the record fails to show aught except the bare fact that an application for a change of venue was filed. Neither the application itself, nor any record of any action thereon, appears in the record, nor is any exception to the action of the court, nor any exception to the failure of the court to act thereon, shown by the bill of exceptions. For aught that appears, except by fairly plain inference, defendant waived action thereon after filing the application for a change of venue. The inference referred to is that he got the identical change of venue he asked for; because the case was tried by Judge Dearing of the Twenty-First Circuit, and not by the regular judge of the Stoddard Circuit Court, whom we judically know to be Judge W. S. C. "Walker. But be this as may be, matters of this sort are matters of pure exception to be saved for review in the bill of exceptions, and since the point is-not so saved, we cannot review it. [Drainage District v. Richardson, 227 Mo. 252.]

Cognate to this complaint, 'is the contention likewise urged that Judge Dearing had no authority to try this case because the record is bare of averments making for jurisdiction in him. TDe contention touching the record is true,, save and except the meagre entries (a) that an application for a change of venue was filed, and (b) that Hon. E. M. Dearing, “who was called by the Hon. W. S. C. Walker, regular judge of this court, and requested to sit in the following cases: State of Mo. v. W. F. Allen . . . was on the bench.” While these entries are meagre in averment and the last one does not appear till after one mis-trial (errors in which we are not here called on to review), we are of opinion that, aided by the presumptions we are permitted to entertain, of the right and proper action of a court of general jurisdiction, they are sufficient to show that Judge Dearing was for a sufficient reason called in by the regular judge to sit in this case. 'While the record here does not show any effort of defendant and the prosecuting attorney to elect, or rather agree on, a special judge before Judge Dearing was called in (Sec. 5199, R. S. 1909), yet in the absence of a record showing the contrary it will be presumed that both the defendant and the State waived the privilege of selecting a special judge. [State v. Wear, 145 Mo. 162; State v. Gillham, 174 Mo. 671; State v. Hunter, 171 Mo. l. c. 439.] Since, as forecast, a circuit court is a court of general jurisdiction, every presumption will be entertained touching the rightness and orderliness of,its proceedings, naught else, appearing, and since the record shows that the regular judge did call in Judge Dearing to try this case and that he tried it without objection -from any source, it was not fatal to Judge Bearing’s jurisdiction that the recoid failed to show affirmatively the reasons moving Judge Walker in such behalf. [State v. Hunter, 171 Mo. l. c. 440; State v. Gilmore, 110 Mo. 1; State v. Gamble, 108 Mo. 500; State ex rel. v. Wear, 129 Mo. l. c. 625.] As seen, however, the inference is obvious that Judge Dearing was called in because Judge Walker had been theretofore “sworn off the bench,” as the local vernacular would designate it, by the application for a change of venue. The conclusion follows that this contention should be disallowed.

IV. In the course of the cross-examination of the - prosecuting witness she stated in answer to a question ^ counsel for defendant, that her uncle, for defendant Fowler, had talked with her and her mother about going to St. Louis. Thereupon defendant’s counsel asked her this question: “What was the discussion between your uncle, your mother and yourself about his going to St. Louis to see Dr. Allen?” An objection by the State was interposed and sustained to this question for that it had no> tendency to prove any issue in the case and defendant excepted. Whereupon the jury and the prosecuting witness were both removed and defendant made his formal offer of proof thus:

“The purpose of this offer is to show that, as the witness has testified, her uncle came down there to Dexter and had a conference with her mother and her, respecting this case, with a view of her uncle g’oing .to St. Louis and getting a thousand dollars to settle the case. I expect to show that in pursuance to that conference, he did go to St. Louis and hunted up Doctor Allen, that he demanded a thousand dollars from him,, and Doctor Allen told him that he would have to see Mr. Mozley, his attorney at Bloomfield, and that he couldn’t discuss the matter with him. I expect to show that he came directly from St. Louis to my office and made the same demand on me; that he stated to me that if we would pay a thousand dollars, he would see that Miss Allard was not here for the trial; that if we would pay him a thousand dollars, he would take Miss Allard and go to Illinois and not appear at the trial of this case. I expect to show that I declined to do it and ordered him out of my office. ’ ’

Upon this offer the court again ruled that since ■“the State could not be bound by such' conduct on the part of the uncle or anybody else,” and the offering “had no tendency to prove or disprove any of the allegations charged in the information,” objection by the State to the offering would be sustained, and defendant again saved his exception. In this refusal to allow the defendant to investigate the alleged connection of prosecutrix and her mother, who was also a very damaging witness in the case, with the alleged acts of the uncle, we think the learned court nisi erred. This offer of proof could, indeed, neither bind nor estop the State, nor did it tend to prove or disprove any of the component elements of the offense charged, but it would have served to impeach both the prosecuting* witness and her mother, from whom alone came practically all of the evidence of defendant’s guilt. There was an entire lack of physical corroborating facts.Prosecutrix was never examined by a physician or by any one else, neither did she become pregnant from the alleged intercourse. In short, the proof of her deflowering rests upon the oral averments of her mother and herself, diminished as to herself in probative weight by the fact that she first confessed defendant’s behavior with her under stress of a face-slapping and hair-pulling from her maternal parent;

The sole defense was that defendant had never had sexual intercourse with her. Upon this alleged truth and his good character he relied for -acquittal;, so, an inquiry into the motives if any, of those who appeared against him was peculiarly important in his defense. If prosecutrix’s uncle went to St. Louis and offered to compound this felony of his own accord and without the consent and concurrence of witnesses who appeared against the' defendant, then it follows of course that his acts — unless to impeach him should he become a witness in the case — are inadmissible for any purpose. But' if he went to see defendant to make this offer, with the con-sent and concurrence of prosecutrix and her mother, he became their agent on the ground, to mention no other, that all became co-conspirators and they are to be impeached by what he said or offered to do while endeavoring to carry through the common enterprise, just as though they had made the offer themselves. If the rule were otherwise compounders of felony and blackmailers need only to employ an intermediary in order to go unwhipt of justice. There are old cases which .seem to hold that even the prosecutrix would not be impeached for that she offered to compromise the case. Doubting the logic of such a view, but distinguishing these cases if they are right, from a case wherein an offer is made by one representing the chief witnesses in the case, that if the sum of one thousand dollars be paid by the defendant the prosecutrix will leave the State and not appear at the trial, we are impelled to say that if such proof would not be meet for impeachment, it is difficult to imagine conduct which would be ■admissible for that purpose. In analogous cases in this State, and squarely in point elsewhere, it has been so held. [Barkly v. Copeland, 86 Cal. 483; Alward v. Oakes, 63 Minn. 190; Bessette v. State, 101 Ind. 85; Jenkins v. State, 34 Tex. Cr. App. 201; Richards v. State, 34 Tex. Cr. App. 277; Comm. v. Bell, 4 Pa. Superior Ct. 187; Pleasant v. State, 13 Ark. l. c. 377; State v. McKinstry, 100 Iowa, 82.] Upon the facts here this case is to be clearly distinguished from that of State v. Caudle, 174 Mo. l. c. 393.

The point is made that the evidence is not sufficient to take the case to the jury. This point is not well taken. There was substantial evidence of guilt, and since' the weight and credibility of the evidence is for the jury and not for us, we are not disposed, nor have we the legal right to interfere. For the error noted let the case be reversed and remanded for a new trial. It is so ordered.

All concur.


author: REVELLE, J.

text:
    THE STATE v. JOHN R. BURTON, Appellant.
    Division Two,
    February 15, 1916.
    1. FAILURE TO SUPPORT WIFE: No Element of Vagrancy. Section 4789, Revised Statutes 1909, declaring, among other things, that “every able-bodied married man who shall neglect or refuse to provide for the support of his family . . . shall be deemed a vagrant” and upon conviction punished by imprisonment or fine, is a statute defining vagrancy, and cannot be used to enforce a civil liability; nor is a husband who honestly tries to obtain work and is unable to procure sufficiently remunerative employment to propertly support his family, a criminal or a vagrant, nor can he be punished under said statute. [Disapproving Marolf, v. Marol'f, 191 Mo. App. 239, so far, if at all, as it conflicts with this holding.]
    2. -: -: Placing Wife With Sister to Board. A husband who at a time when he was receiving sixty dollars per month put his wife and child with her sister under an agreement to pay her twenty dollars per month for their board and lodging, and paid the amount regularly for three months, and who, having lost his position, after two or three weeks’ effort to secure employment obtained a position at a hotel at five dollars a week, cannot be convicted for failure during the next three months to pay to his wife or her sister any part of the five dollars, his purpose being to discharge his obligation to his wife’s sister as soon ás he was able.
    3. -: -: Wife With Money. The gift of one thous- and dollars by the wife to her sister within the time her husband was unable to obtain remunerative employment simply has a tendency to show the wife was not in destitute circumstances.
    Appeal from St. Louis Court of Criminal Correction. —Hon. Benjamin F. Clark, Judge.
    Reversed and defendant discharged.

      Fish & Fish for appellant.

      John T. Barker, Attorney-General, and Kenneth C. Sears for the State.
   REVELLE, J.

This cause was originally appealed to and decided by the St. Louis Court of Appeals, and certified to us for final determination because one member of that court deemed the majority opinion to be in conflict with the decision of the Kansas City Court of Appeals in the case of Marolf v. Marolf, 191 Mo. App. 239.

The ease involves the correct construction of section 4789, Revised Statutes 1909, and its application to the facts here disclosed. The substantive part of the charge is that defendant, being an able-bodied married man, did wilfully neglect and refuse to provide for the support of his lawful wife and child, in that he neglected to provide the necessary food and clothing for their maintenance and support, and left them wholly destitute of the same and in a condition of suffering and want. The information is predicated upon that clause of the following section (Sec. 4789, R. S. 1909) italicized:

‘ ‘ Every person who may be found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drank, without any visible means of support, or shall attend or operate any gambling device or apparatus, or be engaged in practicing any trick or device to procure money or other thing of value, or shall be engaged in any unlawful calling whatever, and every able-bodied married man who shall neglect or refuse to provide for the support of his family, and every person found tramping or wandering around from place to place without any visible means of support, shall be deemed a vagrant, and. upon conviction thereof, shall be punished by imprisonment in the county jail not less than twenty days, or by fine not less than twenty dollars, or by both such fine and imprisonment. ’ ’

The evidence tends to prove that defendant is an able-bodied man and with his wife lived at the home of his parents from April,' 1912, the time of his marriage, until the latter part of January, 1913, at which time his parents changed their residence, and defendant, thereupon made arrangements with his wife’s sister to furnish his wife, as well as his recently born child, with board, lodging and necessary care. In consideration of this, he agreed to pay the sister the sum of twenty dollars per month, the understanding being that this arrangement should continue until such time as defendant conld earn money sufficient to enable him “to take her to a flat of some kind.” At that time he was in the employ of the American Car Company, and was receiving sixty dollars per month. This plan and arrangement seemed entirely satisfactory to all parties concerned at the time of its adoption, and, in pursuance thereof, the wife and child received from the sister proper care and maintenance, and the defendant, up to March 25, 1913, paid the sister the aggregate amount of twenty-five dollars. In the meantime defendant lost his position with the car company, and, after two or three weeks’ effort (honest effort, so far as the record here discloses), he procured work at a hotel at a wage of five dollars per week, and in this capacity, and at this remuneration, he served to the time of his trial, to-wit, July, 1913. After March 25th he made no payments to the wife’s sister, and did not otherwise contribute to the support and maintenance of his wife or child. His explanation of this was that he had an invalid father for whom he was also trying to care; that he knew his wife and child were being well provided for by relatives with whom he had contracted, and that his hire had not been sufficient to enable him to fully carry out his part of the contract with his wife’s sister, although he recognized his legal liability to the sister and expressed his desire to discharge same when able.

It also appears from the record that the wife had personal property of her own amounting to something over a thousand dollars, but her brother and sister explained that this the wife gave to the sister.

The defendant also stated that his inability to procure more remunerative employment was due in part to the action of his tvife’s brother (chief witness for the State) in refusing to endorse and recommend him for certain positions when called upon to so do.

I. There is no evidence that the sister with whom, the contract was made, or anyone for her, at any time ' notified the defendant that, because of Ms breach and failure to promptly pay, the wife and child were not receiving, and would not receive, the care and necessaries for which he had contracted, and which, seemingly, were adequate to their wants and station in life. On the other hand, the record discloses that they did, in point of fact, receive such, and were not, as the information alleges, “left wholly destitute of food and clothing, and in a condition of suffering and want.” They were not cast upon the charity and mercy of the world, and, so long as the sister saw fit to continue her part of the agreement, as she had done up to the time of the trial, and take her chances on collecting the debt, there was no likelihood of defendant’s family becoming destitute or in want or a burden upon the State; nor is there evidence that had she refused to further care for them, in pursuance of her contract, the defendant would not, to the extent of his ability, have made other arrangements for their care and support. "What is the distinction between this case and that of the man who, upon his credit and by his agreement to pay, induces the butcher, • grocer and merchant to furnish supplies and life’s necessities to his family, and then refuses to pay therefor? The defendant’s conduct in this case evinces, at least, a solicitude for his family, even though' it shows not the same concern about the payment of his debts. This case smacks too strongly of an effort to use the criminal laws for the purpose of enforcing, a civil liability. This statute was not enacted to protect creditors, or make the liberty of men security for their debts; it is not so nominated in the bond, and we have rather ancient and longstanding authority for refusing to extend the terms of such a bond; neither was it enacted to add further pangs to the “wretched sonl already bruis’d with' adversity. " . It is a statute defining vagrancy, and by its very terms excludes the man who is not able-bodied. "Why this express exemption, except upon 'the theory that a man shall not' be denounced and punished as a criminal when nature or earthly misfortune has rendered him physically unable to fulfill his marital and paternal obligations; and if this is the spirit of the act why hold responsible the man to whom misfortune has come in other forms? Poverty brings its- suffering and adversity its sorrow, but neither, in themselves, is disgraceful, and until the properly constituted authority so expressly ordains, I am unwilling to brand them criminal. "Why should the man who, because of business depression, or peculiar misfortune, is unable to procure sufficiently remunerative employment to properly support his family be branded as a vagrant and a criminal?'

In the case at hand the evidence does not disclose that the defendant was not at all times willing and anxious to, and in point of fact, did work, and was earning such compensation as his employment and 'efforts permitted. Should he then be placed in the class denounced by this statute — the class of the vagrant and vagabond and among those who loiter around houses of ill-fame,'gambling houses, etc.? In Gallemore v. Gallemore, 115 Mo. App. l. c. 191-2, Nortoni, J., in discussing this section, said:' “Indeed, such a construction in times of commercial depression and' paralyzed industry, might prove ruinous to the peace and repose of society. Men theretofore honest, seeking employment, would be. in many instances' driven to pillage and plunder to render the support required, rather than render themselves-liable to prosecution and subject to divorce proceedings upon their failure to provide such support. No such unjust and unreasonable construction of the statute should be had or even contemplated for a moment. It therefore must necessarily follow that the Legislature'intended, when it provided that an able-bodied man should be deemed a vagrant when he either neglects or refuses to support his family, that it was leveling the penalty of the law only at the vagabond husband who had the means or ability to render such support and neglected' or refused, and that it was not intended' to level such penalty at the husband who was willing to do so and whose neglect or failure in that respect arose solely from his inability to find employment. It seems quite clear that such a case was not contemplated as being within the spirit of the act. Indeed, the employment of the words ‘neglect’ or ‘refuse’ by the Legislature is demonstrative of the intent. ‘Neglect’ arises from an inattentive state of mind, want of care for and an. utter disregard of, in this connection, the obligation resting upon the husband to support his family;; whereas, the word ‘refuse’ imports a wilful disavowal' of or disregard for such obligation. It is therefore obvious that the husband who is denounced as a vagrant, is one who neglects or refuses the support from his want of proper regard for - the social duties and obligations of life, his total or partial disregard of the ties of filial affection, and his insensibility to and want of respect for the family relation upon which the whole superstructure of civilized society rests. ” :.

The evidence also discloses that the wife had personal property of the value of more than one thousand dollars, and that she gave this to her sister. Comment on this is unnecessary, further than to observe that it only emphasizes the notion that she was not in a destitute or suffering condition, and that this prosecution is for purposes other than that contemplated by the law.

The majority opinion of the Court of Appeals in-this case is in accord with Dwyer v. Dwyer, 26 Mo. App. 647, Gallemore v. Gallemore, 115 Mo. App. 179, and State v. Burton, 171 Mo. App. 345, and we see no substantial conflict between it and the case of Marolf v. Marolf, 191 Mo. App. 239, but to the extent that minds may differ as to these respective holdings the latter is disapproved.

The judgment of thé court of criminal correction is therefore reversed, and the defendant discharged.

Faris, P. J., and Walker, J., concur.


author: WILLIAMS, C.

text:
    JAMES F. CASHION and AUDREY BELL RAY, Appellants, v. J. W. GARGUS et al.
    Division Two,
    Febuary 15, 1916.
    1. ADMISSION: By Pleading. A litigant cannot challenge a finding of facts by the court which stand admitted by his own pleading.
    2. TIMELY ANSWER: Must Be Shown By Record. Allegations ' in a motion for judgment on the pleadings, that defendant failed to file his answer within the time given him by the court, do not prove themselves, but must be established by record entries; and in the absence of any record entries in the abstract tending to show them to be true, the motion cannot be considered on appeal.
    3. AMENDED PETITION: Departure: Description of Land. An amendment of a petition in a suit for the specific performance of a contract to purchase land by changing the erroneous description of the land to a correct description, made before judgment, by leave of court, is permissible, and is not such a departure as to change the cause of action.
    4. -: -: -: Minors: No New Summons. And although the defendants are minors, if they have been properly brought into court, a guardian ad litem, appointed and his acceptance filed, the filing thereafter of an amended petition by which an erroneous description of the land contained in the original petition is corrected, is as binding on them as upon adult defendants, and they have no greater right to an additional summons and service; and a judgment against them without such additional summons is not void or voidable.

      Appeal from Dunklin Circuit Court. — Hon. G. B. Faris, Judge.
    Affirmed.

      Bradley S McKay for appellants.
    (1) The original petition upon which said-judgment was rendered, failed to state any facts sufficient to constitute a cause of action against defendants in that cause: 1st, because the petition, being based upon a verbal contract for the sale of real estate, failed to ple'ad facts which would take it out of the Statute of Frauds, and no proof of facts could be offered which would take it out of the statute without being pleaded; 2nd, because the petition failed to describe the land; and 3rd, because the petition showed on its face that it was barred by laches. Therefore, no valid judgment could be rendered against these minor defendants on said petition. Chambers v. LeCompte, 9 Mo. 575; Wildbahn v. Robidoux, 11 Mo. 659; Walker v. Ray, 111 111. 315; Lloyd v. Kirkwood, 112 111. 229; Meyer v. Mitchell, 77 Ala. 312; Price v. Bell, 91 Ala. 108; Askeer v. Carr, 81 G-a. 685; Northrob v. Boone, 66 111. 368; In re Ferguson, 124 Mo. 574; Anderson v. Scott, 94 Mo. 637. (2) A demurrer ought to have been sustained to the evidence in the original cause of action, because the petition was based upon an oral contract for the sale of real estate and O. B. Harris could not testify, the other party to the alleged contract having been dead and the burden was on plaintiff to establish his case against these minors by proving all the material allegations. Veth v. Gierth, 92 Mo. 97; Foster v. Kimmons, 54 Mo. 488; Taylor v. Williams, 45 Mo. 80; Davis v. Petty, 147 Mo. 374; Gibbs v. Whitwell, 164 Mo. 387; Charpiot v. Sigerson, 25 Mo. 63; Strange v. Crowley, 91 Mo. 287; Taylor v. Yon Schrader, 107 Mo. 206; Alexander v. Alexander, 150 Mo. 579; Collins v. Trotter, 81 Mo. 275. (3) The judgment rendered on the 24th of January, 1896, against the minor heirs of James H. Cashion, is not binding because the petition was amended wholly changing the cause of action as alleged in the original petition filed, and the record fails to show any additional service upon the minors after the amendment, and fails to show the answer of the guardian ad litem to said amended petition and for that reason the judgment does not bind these plaintiffs. Cauthom v. Berry, 69' Mo. App. 404;. Powell v. Horrell, 92 Mo. ■ App. 406; Liese v. Meyer, 143 Mo. 547; Pruett v. Warren, 71 'Mo. App, 84; Grigsby v. Barton County, 169 Mo. 221; Finner v. Nichols, 158 Mo. App. 539; Bick v. Baughn, 140 Mo. App. 595. (4) The guardian ad litem must do for the minor what he could do for himself, and when the record fails to show that the guardian ,ad litem has performed his duties, a judgment rendered against minors will not bind them. Reineman v. Larkin, 222 Mo. 156. (5) All of the facts upon which one relies for judgment against an infant, answering by guardian ad litem, must 'be proved. And the guardian ad litem cannot omit anything, or waive anything which will sustain the adverse party’s case. Collins v. Trotter, 81 Mo. 275; Revely v. Skinner, 33 Mo. 98. (6) The original judgment rendered on the 24th day of January, 1896, is, as to these minors, a default judgment, because the guardian ad litem, if any, appointed by the court, could not waive or admit anything, and the. petition and judgment, must show jurisdiction in order to make a valid judgment against plaintiffs who were minors at the time the judgment was rendered, and the petition and judgment in that cause failed to show jurisdiction, upon the minor plaintiffs, and the judgment was void in a direct attack. Schneider v. Patton, 175 Mo. 684; Jewett v. Boardman, 181 Mo. 647; Wilson v. Borrow, 223 Mo. 520.

      T. B. B. Ely for respondent.
    The minors in the original suit for specific performance were duly served with summons to appear at the January term of the Dunklin County Circuit Court and cause was continued to July term, 1894, and at July term,. 1894, a guardian ad litem was duly appointed, who filed his acceptance and answer. All the statutory requirements were complied with. and the court had jurisdiction over said minors. Secs. 1745 and 1748, R. S. 1909. While the guardian could waive nothing or confess nothing for his wards, that did not affect plaintiffs’ right to amend after service and the appointment of guardian ad litem and filing of his acceptance and answer, and he can then do for the minor what he could do for himself so far as pleading is con7 cerned, and “he can act in regard to his ward’s interest, just like an ordinary litigant,” except he could not waive or confess anything for them, which he did not do in this case. Collins v. Trotter, 81 Mo. 284. There is-nothing in this record to show that the guardian waived anything; or admitted anything for his ward, but on the contrary appeared and required strict proof of all the allegations in the petition and the judgment was a valid one. Pevely v. Skinner, 33 Mo. 9'8; LeBourgeoise v. McNamar, 82 Mo. 189. The court having acquired jurisdiction it had the right to order or permit the pleadings to be amended upon such terms as were just. See. 1846, R. S. 1909. And there is no different rule provided by statute where the minor is represented by a guardian ad litem.

   WILLIAMS, C.

This action was instituted in the circuit court of Dunklin County to set aside the decree rendered in a certain cause in said court on the 24th day of January, 1896, and to reinstate said original cause and to permit-the plaintiffs in this case to answer and defend against the same. Trial was had resulting in a judgment in favor of the defendants, and plaintiffs duly perfected an appeal to this court. The decree which this suit seeks to set aside was a decree entered in a suit for specific performance of a contract to convey real estate. The original decree granted the relief prayed and vested the title to the real estate in the plaintiff in said original suit. The two plaintiffs in the present suit were minor defendants in the original suit. O. B. Harris, one of the defendants in the present suit, was the plaintiff in the original suit. Defendant Gargus in the present suit is the grantee of said Harris. Defendant Hardesty in the present suit is the tenant of said Gargus. - -

The petition in the present suit was in two counts, the first count seeking the relief above mentioned and the second count being in ejectment. Plaintiffs, in the first count of the petition, allege in substance that the plaintiff in the original suit was not entitled to recover therein, but that they have a good and sufficient defense to his claim for specific performance of a contract to convey said land to him, and further alleged that the day before the case was tried the plaintiff in said original suit was permitted to amend his original petition by changing the description of the land therein mentioned and that the amendment entirely changed the cause of action, and that no additional service was had upon said minor defendants after said amended petition was filed, and that for that reason said original decree was null and void and had no binding force or effect upon said minor defendants (these plaintiffs). The petition further alleged that the original petition. showed on its face that the cause of action was barred by laches and failed to allege that any demand for performance had been made by the plaintiff upon the person with whom he contracted for the purchase of said land.

The answer filed in the present' suit was a general denial. At the request of the plaintiffs in the present suit, the trial court made a special finding of law and fact and upon examination we find that the same correctly and tersely states the facts shown by the evidence and necessary to be known for a proper review of the points presented upon this appeal. For that reason we copy this special finding of facts and law, together with the trial court’s judgment, which was as follows:

“Come now plaintiffs herein in person and by counsel and the defendants in person and by counsel, and this case is taken up and submitted to the court, and the court proceeds to hear the evidence and to determine the rights of the parties in this case, and after hearing the evidence and a motion having been filed asking! separate findings of law and facts, the court finds:
“That at the January term of the Dunklin County Circuit Court, 1894, in si certain case wherein O. B. Harris was plaintiff, and Mollie A. Shelton, formerly Mollie A. Cashion, widow of decedent Cashion, below mentioned, Charles E. Cashion, a minor, James F. Cashion, a minor, and Audrey Bell Cashion, a minor, heirs of James F. Cashion, were defendants, a certain bill in equity, the general nature of which was for specific performance of a contract to convey real estate ■arid to divest title to the northwest quarter of the northwest quarter of section twenty-five, township eighteen north, of range nine east, in Dunklin County, Missouri, out of the defendants and to vest same in the plaintiff, came on to be heard, plaintiff alleging, among other things in his petition, that James F. Cashion, deceased, father of the minor defendants and former husband of said Mollie A. Shelton, had sold the land in dispute to O. B. Harris, during his (decedent’s) lifetime, and had placed him, said Harris, in possession of said premises, and that full payment for said land had been made by said Harris, but that the said James F. Cashion departed this life in April, 1901, without making the said O. B. Harris a deed for said land.
‘ ‘ The court further finds that the defendants were properly summoned into court; that Hon. W. S. C. Walker was appointed guardian ad litem for all the minors, and that he filed his acceptance and answer in said cause; that the original petition misdescribed the land in question as the southeast frl. quarter of section thirty-four, township eighteen, range nine, Dunklin County, Missouri. That afterwards and prior to the submission of said cause and prior to the rendition of judgment thereon, the plaintiff, by leave of court, amended his petition correctly describing the lands in question as the northwest quarter of the northwest quarter of section twenty-five, township' eighteen, range nine, Dunklin County, Missouri. The court further finds that the defendants were duly summoned into court and duly represented by W. S. C. Walker as guardian ad litem, that a judgment was regularly rendered at the January term of the Dunklin County Circuit Court, 1896, in said cause, which said judgment is as follows:
“ ‘O. B. Harris, Plaintiff, vs. Mollie A. Shelton et ah, Defendants — No. 904.
• “ ‘Comes now O. B. Harris, plaintiff, in person as well as by attorney, and Mollie A. Shelton, widow of Jas. M. Cashion, deceased, Chas. E. Cashion, Jas. P. Cashion and Audrey Bell Cashion, minors, by attorney and guardian ad litem and this case is taken up for trial and the court proceeds to hear, try and determine the rights of this suit, and after hearing the evidence doth find that prior to the death of said Jas. M. Cashion, the plaintiff, O. B. Harris, did purchase and pay for the northwest quarter of the northwest quarter of section twenty-five, township eighteen north, of range nine, and the court further finds from the evidence that for and in consideration of the said sum of three hundred and forty dollars, which amount said plaintiff was to pay .and did pay for the lands as herein described, the said Jas. M. Cashion was to make to the said O. B. Harris, plaintiff herein, a good and sufficient deed, and the court further finds from the evidence that the said Jas. M. Cashion did put the plaintiff, the said O. B. Harris, in possessiqn of the land as herein described, but failed to make, execute and deliver to the said plaintiff the deed which the said Jas. M. Cashion promised to make, execute and deliver; therefore it is ordered and adjudged by the court that the rights, benefits and title in and to the land herein described, as against the party defendants or their assigns, are hereby decreed in plaintiff'and that he have of and recover from the defendants, his costs in this behalf expended.’
“The court further finds that in the obtaining of the judgment by plaintiff in said former action against the plaintiffs herein, there was no fraud or collusion, nor is any charged by the petition. The action is bottomed upon the alleged lack of jurisdiction in the Dunklin County Circuit Court to permit said amendment of the description of the said land involved.
“The court further finds that, prior to the death of plaintiffs’ ancestor, James F. Cashion, and to-wit, about the month of January, 1889, said Harris entered into possession of the lands in controversy, and that said Harris or the defendant and his mesne■ grantors, who claim title to the land under the sale to said Harris and under the decree set out above herein, has been in possession of said land since about January, 1889, continuously, and that defendant is now in possession of the same.
“From the above facts, the court concludes, as a matter of law, that in the absence of fraud, or collusion (which neither is pleaded or relied upon) and. in the absence of irregularities in summons or judgment or other jurisdictional fact, the-mere fact that after infant defendants were duly in court, and being there represented by a duly appointed guardian ad litem, the court permitted an amendment to be made changing the description of the land touching which specific performance to convey was sought by the action, will not render the judgment 'void as to such infants, and that the same is valid and binding, and that the judgment and finding of the court should be for the defendants, upon both counts of the petition.
■ “It is therefore ordered, considered and adjudged By the court that plaintiffs take nothing by their suit, that defendants g’o hence without day; that the costs in this case be adjudged against the plaintiffs, and that execution may issue therefor. ”

OPINION.

I. Appellants contend that there was no evidence to justify the court in finding the fact to be that the defendant minors in the original suit were P'r°perly summoned into court or that W. S’. C. Walker was appointed guardian ad litem for all of said minors and filed his acceptance and answer in said cause.

Concerning this point, it is sufficient to say that appellants’ petition alleged that said minors “were duly served to appear” in the original suit and that the court in said cause duly “appointed Hon. W. S. C. Walker as'guardian ad litem for said minors” and that said W. S. C. Walker “filed his acceptance as guardian ad litem” and appeared in said cause and was by the court granted leave to plead on or before the first day of the next term of said court. Appellant should not be heard to challenge the court’s finding of facts which stand admitted by their own pleading. Furthermore, the decree in the original suit recites that said minors, naming them, did appear by their guardian ad litem, upon the trial and at the hearing of the evidence in said cause.

II. It is further contended that the court erred in overruling their motion for judgment upon the pleadings. This motion was filed January 16,1912.

The motion as set forth in the hill of exceptions alleges that the defendants failed to file their answer within the time given them by the court and that up to the time of filing: the motion no answer had been filed. We are unable to discuss this point, for the reason that there are no record entries set forth in the abstract upon which the facts alleged in the motion can be founded. The only record entry which, in any manner, has to do with the matters alleged in the motion is the record entry showing that defendants did file their answer on the 17th day- of October, 1910', which was long before the motion was filed. The allegations in the motion do not prove the existence of the facts therein alleged,, but such allegations in order to furnish a ground for review here, should have been supported by a proper showing, at the proper place, elsewhere in the record.

III. It is further contended that the decree rendered against said minors in the original suit, January 24,1896, was not binding upon said minors, because the petition was so amended as to wholly change the cause ac^on alleged in the original petition, and that after the petition was so amended there was no additional service of summons upon said minors.

The amendment, to which reference is here made, consisted of correcting an error in the description of the land involved. The land was described erroneously in the first petition, and the plaintiff, by leave of court, made an amendment by changing the erroneous description to a correct description. This was not such an amendment as changed the cause of action and the amendment was properly permitted to be made. [Sec. 1848, R. S. 1909; Callaghan v. M’Mahan, 33 Mo. 111; Blanchard v. Dorman, 236 Mo. 416, l. c. 443; Wright v. Groom, 246 Mo. 158, and cases therein cited.] The statute on amendments does not make any exception prohibiting amendments in pleadings where minors are, parties to the suit and we are not aware of any reason calling for a distinction in that regard. If the court has acquired jurisdiction over the person of the minors, as was true in the case under discussion, any amendment, not a departure from the cause of action originally stated, should be permitted, the same as if all the parties were of legal age.

The amendment made being entirely permissible and not such as to amount to a departure from the cause of action originally stated, it was unnecessary that there should have been further service of summons upon the minor defendants. They had been duly served with summons, a guardian ad litem had been duly appointed and he had filed his written acceptance of his appointment and appeared in the case. The court was thereby given jurisdiction of the persons of said minors, and the judgment thereinafter rendered was binding upon them. The evidence fully supported the judgment of the trial court and it should be affirmed. It is so ordered.

Roy, G., concurs.

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

All the judges concur, except Faris, J., not sitting.


author: BOND, J.

text:
    CHARLES A. PITMAN, Appellant, v. JOHN W. DRABELLE et al.
    In Banc,
    February 21, 1916.
    1. CONSTITUTIONAL LAW: City Charter. A municipal charter or a statute of the State will not be held to violate the Constitution if any other rational interpretation can be given it.

      2. -: -: Legislative Power of People. Except as inhibited by the Federal or State Constitution the power of. the people of a State to legislative is plenary, and they may exercise that power through the Legislature, or the Initiative, and the same principle applies to municipal corporations, which in their public capacity are but agents of the State.
    3. -: -: Legislation By Initiative: One House Legislature. The clause of the new charter of St. Louis which provides that, upon the failure of the one house of the municipal legislature to act upon the certification to it of petitions showing the measure which the people request them to adopt, the measure may be enacted into law through the instrumentality of an initiative petition and the vote of the people, does not contravene that clause of the Constitution which declares that the charter of such a city “shall be in harmony with and subject to the Constitution and laws of the State, and shall provide, among other things, for a chief executive and at least one house of legislation to be elected by general ticket.” Nor in conditioning initiative legislation upon the inaction of the one house is it so out of harmony with the constitutional amendment of 1908 applicable to the whole State, or with the statutes of 1913 which gave initiative powers to cities of the second and third class, as to render it invalid. Nor does the Constitution require a municipal legislature of more than one house.
    4. -: -: Arrest of Legislation: Election: Injunction. An election called in pursuance to a provision of the city charter under a valid plan for initiative legislation and proper petitions, cannot be enjoined on the ground that the ordinances as proposed are unconstitutional. During the process of legislation in any mode the work of the lawmakers is not subject to judicial arrest, or control, or even open to judicial inquiry. It is only after the proposed legislation has become an accomplished fact that its constitutionality can be determined by the courts.
    Appeal from St. Louis City Circuit Court. — Eon. George E. Shields, Judge.
    Affirmed.

      Eenry S. Caulfield, Eomer G. Phillips and George L. Vaughn for appellant.
    (1) There can he no douht as to the right of a taxpayer, suing on behalf of himself and all other citizens and taxpayers who are similarly interested with him, to have relief by injunction for the prevention of an illegal or unauthorized diversion of public funds belonging to the municipality. 2 High on Injunction (4 Ed.), 1237; Dillon, Municipal Corporations, sec. 1579 et seq.; Newmeyer v. Railroad, 52 Mo.'81; Ru-bey v. Shain, 54 Mo. 207 ;. Black v. Cornell, 30 Mo. App. 641; Black v. Ross, 37 Mo. App. 250; Knapp v. Kansas City, 48 Mo. App. 485; Mayor of Baltimore v. Gill, 31 Md. 375; Savidge v. Spring Lake, 112 Mich. 91. And this right exists where the illegal or unauthorized diversion is for an election of the kind here involved, for which there is no warrant in law. .22 Cyc. 885; 2 High on Injunction (4 Ed.), 1237; Mayor of Macon v. Hughes, 110 Ga. 795; Layton v. Mayor, 50-La. Ann. 121; Railroad v. Board of Commissioners* 108 N. C. 56; Solomon v. Fleming, 34 Neb. 40; Con-nor v. Gray, 88 Miss. 489. (2) The city of St. Louis has no power or authority, under the Constitution, to provide by charter for .any method or system of legislation independent of at least one house of legislation to be elected by general ticket. State ex inf. v. Railroad, 151 Mo. 162; St. Louis v. Telephone Co., 96 Mo. 628; St. Louis v. Eddy, 123 Mo. 557; Independence v. Cleveland, 167 Mo. 388; St. Louis v. Dreisoerner, 243 Mo. 223; St. Louis v. Quarry Co., 244 Mo. 479; State ex rel. v. Skeggs, 154 Ala. 249; In re Dunn, 9 Mo. App. 255; State ex inf. v. Kansas City, 233 Mo-16-2; St. Louis v. Dorr, 145 Mo. 466; Westport v. Kansas City, 103 Mo. 141; Cooley, Const. Limitations (7 Ed.), p. 98; Dield v. People, 3 111. 79; Graham v. Roberts, 200 Mass. 152; Mo. Constitution, art. 9, sec. 22, art. 4, sec. 57.

      Benjamin H. Charles, Charles B. Daues and Everett Paul Griffin for respondents.
    (1) The court had no'jurisdiction of the subject-matter covered by the petition, and no jurisdiction to ■ grant the relief prayed for. (a) Because equity has no jurisdiction to restrain, by injunction or otherwise, the exercise of the political rights of the people. State ex rel. v. Aloe, 152 Mo. 4*36; Fletcher v. Tuttle, T51 111. 51; Green v. Mills, 30 L. R. A. 90, 69 Fed. 852; Morgan v. Wetzel, 53 W. Va. 372; Anthony v. Burrow,. 129 Fed. 783; Giles v. Harris, 189 U. S. 475; Fisler v. Brayton, 145 Ind. 71; McAlester v. Milwee, 31 Okla. 620; Walton v. Develing, 61 111. 201. (h) Because an equity court has no jurisdiction to restrain,, by injunction or otherwise, the exercise of the lawmaking power, nor the process of legislation. Al-bright v. Fisher, 164 Mo. 64; State ex rel. v. Gates,. 190 Mo. 556; Kansas City v. Hyde, 196 Mo. 506; Duggan v. Emporia, 84 Kan. 429; Pfeifer v. Graves,. 104 N. E. 529. (c) Because an equity court has no jurisdiction to restrain or arrest, by injunction or otherwise, the official acts of public officials preparatory to,, or in the conduct of, public elections. Shoemaker v.. Des Moines, 129 Iowa, 244, 3 L. R. A. (N. S.) 382; Duggan v. Emporia, 84 Kan. 429; People ex rel. v. Galesburg, 48 111. 485; Weber v. Timlin, 37 Minn. 274; Friendly v. Orcott, 61 Ore. 580. (d) Equity has no jurisdiction, because the complainant has a complete and. adequate remedy at law to test the validity of the proposed ordinances, in case they should he adopted, (e) An allegation that the complainant is á taxpayer is not an allegation that his property rights are about to suffer injury. It is merely colorable; thrown in to. make a show of right to proceed in equity to an attack on a charter provision. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Thorson, 9 S. D. 149; Libby v. Olcott, 66 Ore. 134. (2) The initiative and referendum provisions- of the St. Louis charter are valid. Wag-ner’s St. .Louis Charter, arts. 5 and 6, pp. 40, 41. (a) Because the Constitution contains no grants of power to the city of St. Louis. It merely provides a method of incorporation; and indicates a part of the form of its government, namely, a chief executive, and at least one house of legislation. Missouri Constitution, art. 9, secs. 20, 22, 23. “No limitation is placed upon the character of the charter, save and except that it shall always be in harmony with and subject to the Constitution and laws of the State.” Kansas City v. Oil Co., 140 Mo. 470; St. Louis v. Gleason, 15 Mo. App. 30, affirmed (on this point), 93 Mo. 38; State ex rel. v. Stobie, 194 Mo. 14, 54; St. Louis v. Tel. Co., 149 U. S. 465. Powers conferred by this charter are of equal dignity with powers conferred upon a municipal corporation by an act of the Legislature. Ex parte Smith, 231 Mo. 122; Kansas City v. Bacon, 147 Mo. 272; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; St. Louis v. Gleason, 15 Mo. App. 30. (b) The purpose disclosed in the Constitution was that a charter thus adopted might embrace the entire subject of municipal government, and be a complete and consistent whole, with such provisions ■as to the powers conferred and the methods of exercise of such powers, as the people of the city might adopt. State ex rel. v. Field, 99 Mo. 352; Kansas City v. Bacon, 147 Mo. 272; Haag v. Ward, 186 Mo. 343. (c) If the initiative and referendum provisions of the St. Louis charter are void, then the same provisions in charters of cities of the second and third classes are void; because the St. Louis charter stands on the same basis as any other legislative act of the State, (d) The provisions are not repugnant to any provision of the Constitution. The Constitution contains no prohibition against the adoption by the city of St. Louis of these methods of legislation, (e) The provisions are in harmony with the Constitution and laws of the State. To be in harmony with the Constitution means merely in “substantial harmony” with the principles of the Constitution. Kansas' City v. Bacon, 147 Mo. 259; St. Louis v. De Lassus, 205 Mo. 585. Legislation by the initiative and referendum are now (since 1908) principles of the Constitution. And these principles have been recognized by the Legislature in its grant of charters to cities of the second and third , classes. Laws 1913, pp. 443, 530. (f) The new charter of St. Louis shows on its face that the purpose of the Board of Freeholders which framed it, was to confer practically unlimited powers on the mayor and aider-men, with one check only. That check is the initiative and referendum. Remove it, and the people of that city are powerless, except at the polls, and then only at long intervals, (g) The initiative and referendum methods of legislation with respect to municipalities as well as the State at large, have, in other jurisdictions, been sustained as constitutional, with scarcely a dissent. Oregon v. Tel. Co., 53 Ore. 162, 223 U. S. 118; Kadderly v. Portland, 44 Ore. 118; Kiernan v. Portland, 57 Ore. 459; In re Pfahler, 150 Cal. 71; Graham v. Roberts, 200 Mass. 152; Hantig v. Seattle, 53 Wash. 432; Hindman v. Boyd, 84 Pac. (Wash.) 609; State v. Paul, 151 Pac. (Wash.) 1.16. See, also, cases from Ohio, Oklahoma, Texas, Kansas and other jurisdictions, cited under our point one.
   OPINION.

I.

BOND, J.

Plaintiff, a taxpaying citizen, sued to enjoin the holding of an election on the 29th of February, 1916, for the adoption of two ordinances proposed under article 5 of the charter of St. Louis, reserving to the people of that city the power “known as the initiative.”

The ordinances to be submitted to a ballot are referred to in the petition by number and title, and provide for “the use of separate blocks for residence by white and colored races and for the gradual complete occupancy of blocks by one of the two races to the exclusion of the other.”

The ground of the petition is the alleged unconstitutionality of the provisions of the charter with reference to the exercise of the initiative in legislation, and the misappropriation of public money for the holding of the election. The defendants, the board of election commissioners, the city comptroller and the city treasurer, demurred, whereupon the petition was dismissed, and plaintiff appealed to this court where the cause was advanced for public reasons.

II.

The rule is apodeictical that the charter of a municipal corporation or a State statute will not be held to violate the Constitution if any other rational interpretation or construction can be given to it. [State ex rel. v. Kirby, 260 Mo. l. c. 127; State ex rel. v. St. Louis, 241 Mo. l. c. 247; State ex rel. v. McIntosh, 205 Mo. l. c. 602; State ex rel. Warner, 197 Mo. l. c. 656; Ex parte Loving, 178 Mo. l. c. 203.]

This maxim is particularly applicable to the framework of our State government, for the Constitution of Missouri is only limitative of the plenary power to legislate reserved to the people of the State, who may exercise it through the law-making -body, or its auxiliaries in government, or by the initiative except to the extent they have restrained themselves by the prohibitions of the Constitution. [Harris v. Bond Co., 244 Mo. l. c. 687; McGrew v. Railroad, 230 Mo. 496; State ex rel. v. Warner, 197 Mo. 650; State ex rel. v. Sheppard, 192 Mo. 497.]

In that respect our State government differs from the Federal republic whose law-making body derives its only power to act from the grants contained in the Constitution of the United States; while the State Legislature may enact any laws not forbidden by the State or Federal Constitutions. It follows that the relation of the State Legislature to our Constitution is the antinomy of the relation of Congress to the Federal Constitution.

The same principle governs the action of a municipal corporation which in its public capacity as an agent of the State government, may amend its charter in any manner or enact ordinances for any purpose not in conflict with the Constitution and the laws, State and Federal.

The crux of this case is whether the inclusion in the amended charter of the provisions giving to the people the additional right to legislate by the initiative plan is prohibited by the language of the Constitution (Art. 9, sec. 22), which provides for the amendment of the charter of the city of St. Louis.

It is claimed that the amended charter, though otherwise regularly framed and adopted, contravened the Constitution by the inclusion therein of the power to legislate through an instrumentality different from the one referred to in the Constitution. The argument being that by referring to a “house of legislation” and requiring that any amendment of the charter should “provide at least” one of these, the Constitution impliedly prohibited any further provision for an additional mode of legislation. To determine this point, it is necessary to consider the language of the Constitution providing what shall be the character and the contents and the method of adoption of a new charter of the city of St. Louis. So much of the language a's is pertinent to the inquiry is, to-wit:

“Which said charter shall be in harmony with and subject to the Constitution and laws of the State, and shall provide, among other things, for a chief executive and at least one house of legislation to be elected by general ticket.” [Mo. Constitution, art. 9, sec. 22, Amendment adopted in 1902.]

It is not contended that the charter under review fails to meet the requirements of this language in any other respect than that it gives the people the right to legislate by ballot if tbe one “house” of legislation fails to act upon tbe certification to it of petitions showing tbe measures wbicb tbe people request them to adopt. [New Charter of St. Louis, art. 5, page 45, sections 1 to 6 inclusive.]

Tbe plan incorporated in tbe amended charter conditions tbe right to its exercise upon tbe inaction of tbe board of aldermen and in that respect it lacks tbe full faculty of legislation wbicb was reserved to tbe people of tbe State in tbe amendment of the Constitution in 1908. [Constitution of Missouri, art. 4, sec. 57.] But with this exception and others necessary to make it workable and applicable to municipal purposes and limits, tbe plan is tbe same as that embodied in tbe State Constitution construed in State ex rel. v. Carter, 257 Mo. 52, and is practically identical with tbe powers given to cities of the second and third classes by the General Assembly in 1913. [Laws 1913, pp. 443-4, sec. 29; Laws 1913, p. 530, sec. 20 et seq.; Barnes v. Kirksville, 266 Mo. 270.]

Hence it is evident that the feature of the charter under review is completely congruous with the constitutional policy that the people of the State at large should enjoy the right of the initiative, and also with the declared policy of the State expressed in the above acts of the Legislature granting the same powers as to the local administration and providing for their inclusion in the charters of the cities of the State. In view of this declaration of the public policy of this State through the medium of the highest exponents thereof, the Constitution and the General Assembly, we may dismiss from view, any consideration of the suggestion that the amended charter of the city of St. Louis is out of harmony with the Constitution or laws of the State in so far as it provides for the exercise by the people of that city of the power to legislate by the initiative.

III.

It only remains to inquire whether there is anything in the above language of the Constitution which prohibits expressly or by necessary implication enactment of so much of the amended charter as secures to the people of St. Louis a qualified power to legislate in this mode? All that the Constitution contains in reference to any instrumentality of legislation is comprised in these words; to-wit, “shall provide among other things . at least one house of legislation.” This requirement was completely provided in the new charter by creating a board of aldermen who were given legislative power subject to the limitations therein. [New Charter of St. Louis, art. 4, sec. 1.] Having prescribed that one house of legislation would be enough, the Con-i stitution does not prohibit, but impliedly permits the addition of any other house or body with the capacity, to legislate. The only restriction placed by it upon the. framing of a new charter is that it must provide “at least one” of such legislative bodies. This necessarily, left the people free to give legislative functions to another body, for it simply required that the number should not be less than one.

The use of the words “at least” ex vi termini are-only a restriction against dispensing with one house of legislation, but does not forbid nor prohibit the use of more than one house of legislation. So,,under the., language of the Constitution it would have been entirely lawful for the new charter to have retained the bi-cameral body which was the' earlier form of legis-, lation in St. Louis. ' But is was one of the purposes-of the subsequent constitutional amendment (con-, taining the language under review) to enable the people of St. Louis to dispense with the ancient form or to ¡ readopt it, or to provide different methods of legislation with the single qualification that whatever mode,. ■should be devised it must include at least one house, or legislative body, after which the makers of the new charter were left free to provide, without restriction or prohibition, any mode of legislation in harmony with the Constitution and laws of the State. ' This provision of the Constitution was fully effectuated by the adoption of the scheme contained in the new charter which provides for one house of legislation and an auxiliary thereto, known as the Initiative.

A careful analysis of the sections of the present charter referring to the exercise of this auxiliary power to legislate, shows that it cannot be exercised at all unless the board of aldermen shall fail to adopt a proposed ordinance submitted to them by the people of the city. Plainly this contrivance does not deprive the board of aldermen of the power to originate and ■enact laws, for it leaves them with full authority so to do and merely guards against their refusal to enact a local law which is approved by a majority of the qualified voters of the city; for unless it is supported by a majority of the voters it could not carry at the election and would never become a law.

It is of the very essence of free government that the laws regulating a community should reflect the view and voice of a majority of its voters. Hence the plan (initiative) by which the people are empowered to do the business which their recalcitrant representatives have failed to perform, has met with full judicial sanction. [In re Pfahler, 150 Cal. 71; Pacific States T. & T. Co. v. Oregon, 223 U. S. 118.]

We are unable to find anything in the language of the Constitution under review which prohibits the people of St. Louis, after having provided in their charter for one house of legislation, to reserve to themselves the power to legislate in case of the refusal of that body to act. There being no restriction express or implied in the language of the Constitution of the State against the inclusion of this faculty in the charter, and it being plain to a demostration that the power thus reserved is not inconsistent with the laws of the State or nation, we hold that the petition framed on the theory of the nnconstitntionality of the initiative provisions of the charter stated no cause of action and the demurrer thereto was well taken.

IV.

The record shows that the election to adopt or reject the ordinances proposed by the initiative method of legislation, has not yet been held. The question of the constitutionality of these laws is not, therefore, now presented for decision; for during the process of legislation in any mode, the work of the lawmakers is not subject to judicial arrest or control, nor open to judicial inquiry. [State ex rel. v. Meier, 72 Mo. App. l. c. 626; Dreyfus v. Lonergan, 73 Mo. App. l. c. 346; State ex rel. v. Gates, 190 Mo. l. c. 559 et seq.; Glasgow v. St. Louis, 107 Mo. l. c. 203.] But after the lawmaking department of the government in any of its forms or by any of its agencies has finished, its work and the act of legislation in which it was engaged has become fait accompli and is clothed with the outward forms of law, the question of the constitutionality of the completed bill or ordinance becomes one for ultimate determination by’the judiciary.

V.

Nor can it be doubted what judgment would be given if it were shown that a law had been enacted violative of the fundamental principle upon which the government of the State and nation is founded, or destructive of the legal rights of person or property of any citizen or class of citiz-ens of the United States. [Constitution of the United States, Amendment 14.] For it must be borne in mind that no citizen of this State has any legal or political right which does not belong to every other who has not forfeited it by conviction of crime.

Distinctions based on character, culture and. leadership áre inherent in progressive society and exclusively regulated, by that association; but they find no recognition or enforcement in judicial tribunals when called upon to decide the natural rights of all persons “to life, liberty and enjoyment of the gains of .their own industry,” to secure which is the chief design of government. [Constitution of Missouri, art. 2, sec. 4.]

. In upholding the rights of a “ward” of the nation (an Indian) to the equal protection of the law it was said:

“It is part of the American creed — expressed in the chart of our liberties — that all men are created equal before the law. In the administration of justice, neither race, rank, nor riches confers any advantage on its possessor over any other person. These accb dents are not permitted to mar the wisdom and purity of laws made for the equal protection of every human being. Upon this principle we have builded, on this continent, the fairest fabric of freedom which has met the eye of Time.” [Whirlwind v. Von der Ahe, 67 Mo. App. l. c. 630.]

For the reasons given in the former paragraphs of this opinion the judgment in this case is affirmed.

Woodson, G. J., and Graves, J., concur; Faris, Blair • and Bevelle, JJ., concur to all except as to paragraph five, as to which they express no opinion. f