text:
    THE STATE v. GEORGE DILTS, Appellant.
    Division Two,
    December 12, 1905.
    1. APPELLATE PRACTICE: Errors Not Assigned in Motion for New Trial. If a defendant desires to have a matter of exception reviewed in the appellate court, he must assign it as a ground in his motion for a new trial.
    2. EVIDENCE: Order of Introduction., The order of the introduction of testimony rests largely in the discretion of the trial court; and this discretion was not abused in this case by the court’s permitting a witness to testify for the State, in rebuttal, that she did not make the statements- to defendant’s witnesses which were testified to by them, although she had made some reference to said statements in her examination in chief.
    3. .INSTRUCTION: Testimony of Defendant. The following instruction held proper: “The court instructs the jury that the defendant is a competent witness in his own behalf, and his testimony is to be weighed by the same rules that govern the testimony of other witnesses, but in passing upon the weight to be given his testimony the jury may take into consideration the fact that he is the defendant in the cause, and his interest in the result of the trial.”
    4. RAPE: Instruction. An instruction which told the jury that before they could find defendant guilty they must find that there was some degree of entrance of the private parts of the prosecutrix, and that they must find that she manifested the utmost reluctance, was not erroneous, especially when considered in connection with instructions given for defendant.
    5. -; — : Corroboration of Prosecutrix. There is no rule of law forbidding the jury to convict one of rape on the uncorroborated testimony of the prosecutrix.
    6. -: Sufficiency of Evidence. Evidence held sufficient to justify the jury’s verdict finding defendant guilty of rape.
    Appeal from Monroe Circuit Court. — How. David H. Eby, Judge.
    Affirmed.

      J. H. Whitecotton, J. D. Dale, T. T. Bodes, W. W. Barnes and T. P. Bashaw for appellant.
    (1) It was error to permit Mrs. Reed to testify in rebuttal to matters sbe bad gone over in chief. (2) Instruction 4, given by the court of its own motion, is erroneous, in that, on account of the arrangement of its clauses it gives undue prominence and significance to the fact that defendant was testifying in his own behalf. State v. Boyd, 178 Mo. 14. (3) Instruction 5%, given by the court of its own motion, does not employ the words in universal use in stating the elements of the crime of rape. (4) Defendant’s motion' for a new trial should have been sustained for the reason, among others, that the verdict is against the evidence in the case, and, upon the whole case, was the result of the prejudice and bias of the jury.

      Herbert 8. Hadley, Attorney-General, and A. T. Gentry, Assistant Attorney-General, for the State.
    (1)' Instruction 4 told the jury that the defendant was a competent witness, but that his interest in the case could be taken into consideration, etc. State v. Knock, 142 Mo. 523. (2) Instruction 5% properly defined the crime of rape and gave the jury the test by which they were to determine whether such a crime had been committed. State v. Boyd, 178' Mo. 10. (3) While some reference was made by Mrs. Reed to conversations with the witnesses in her evidence in chief, yet the State was entitled to have this witness testify in rebuttal that she made no statements to defendant’s witnesses of the nature as testified to by said witnesses. Besides, the order of testimony is a matter that must necessarily be left largely to the judgment of the trial court; and, in this instance, there was no abuse of that discretion. State v. Murphy, 118 Mo. 15; State v. Buchlér, 103 Mo. 203. (4) The evidence was sufficient to justify the jury in convicting the defendant of the crime charged. State v. "Wilcox, 111 Mo. 575; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Williams, 186 Mo. 128.
   GANTT, J.

At the December term, 1903, of the circuit court of Monroe county, Missouri, the prosecuting attorney of said county filed the following amended information:

“State of Missouri, County of Monroe, ss.

“State of Missouri, Plaintiff,

vs.

“George Dilts, Defendant.

“In the Circuit Court of Monroe County, Missouri, December term, 1903.

“And now at this day comes James P. Boyd, prosecuting attorney of and within the county of Monroe and State of Missouri, and files herein his amended information in this cause, leave of court having been first had and obtained for that purpose, and under his oath of office informs the court that George Dilts, on the tenth day of August, in the year of our Lord nineteen hundred and three, at and in the said county of Monroe and State of Missouri, in and upon the body of one, Minnie F. Whittaker, a female, unlawfully, violently, and feloniously, did make an assault, and her, the said Minnie F. Whittaker, then and there, unlawfully, forcibly and against her will feloniously did ravish, forcibly rape and carnally know, against the peace and dignity of the State.

“Jambs P. Boyd,

Prosecuting Attorney.

“James P. Boyd, prosecuting attorney of and within and for the county of Monroe and State of Missouri, as aforesaid, being duly sworn, on his oath states that the allegations, matters and facts in the foregoing information are true to the best of his knowledge, information and belief. Jambs P. Boyd.

“Subscribed and sworn to before me, this 21st day of December, 1903.

“James H. Hill,

Clerk.of the circuit court of

Monroe county, Missouri.”

At the April term, 1904, of said court, the defendant was put upon his trial and convicted of rape and Ms punishment assessed at five years’ imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the defendant appealed to this court.

The testimony on behalf of the State tended to prove that the prosecutrix, Miss Whittaker, was twenty-one years of age and was living with and in the employ of Mr. and Mrs. Zeno Reed, near Victor, in Monroe county, Missouri, in the capacity of a domestic, assisting Mrs. Reed in the housework. Mr. Reed’s home was about five miles from that of the parents of the prosecutrix. The prosecutrix and the defendant, George Dilts, had known each other for about three years and for some time prior to the alleged offense he had been paying her marked attentions. The father had objected to these attentions and forbade them. On the afternoon of the day of the alleged rape the prosecutrix accompanied the defendant in a one-horse buggy from the home of her employer, Mr. Reed, to Mr. Geery’s, about six miles distant. It appears that they left Mr. Reed’s house about seven o’clock and spent the evening at Mr. Geery’s and returned to Reed’s that night. It was on their return trip that night that the crime is charged to have been committed. The testimony tends to show that they left Geery’s about ten o’clock. According' to the evidence of the prosecutrix, the defendant insisted upon her taking a drink of whiskey during the drive home; but she refused to do so, and he tried to force her to do so, and in so doing spilled some of the whiskey on her clothing. The evidence tended to show that the prosecutrix at this same time was on friendly terms with a young man by the name of Armstrong. During this return trip the defendant began abusing and cursing Armstrong and told her if he ever heard of her going with Armstrong he would kill her. The testimony tends to show further that along the road from Geery’s to Deed’s there were some fourteen houses. Having refused to drink with him when he first asked her, they drove on until they reached Mr. Scobee’s, when he again asked her to drink and she again refused, and he said he guessed he would make her drink and put his hands in his hip pocket. When they reached the gate in front of Mr. Ketterly’s house, he again stopped and asked her to drink and she refused, but he took a drink, and they drove on. She testified that she then begged him to take her home, and they drove on in a slow walk until they reached Mr. Pugh’s place, where he stopped the buggy and tried to force her to drink from the bottle. The defendant denies having any whisky at all with him. After defendant had threatened prosecutrix about going with Armstrong, according to her evidence, he attempted to raise her clothes and take liberties with her person, but she prevented him from doing so. He then requested her to have intercourse with him. When they reached a point near the farm of William Francis the defendant attempted to and finally succeeded in pulling her out of the buggy. In the scuffle her arms were bruised and hurt and her clothing torn and her dress badly soiled. She testified that she resisted defendant all she could and screamed at the top of her voice, but the defendant grabbed her hands and succeeded in having sexual intercourse with her. Prosecutrix then attempted to walk home but was forced by defendant to get into the buggy and ride to Mr. Eeed’s where they separated. Prior to separating defendant told her he would kill her is she ever told what he had done. The prosecutrix reached the home of Mr. Reed about two o’clock in the morning and retired to her room and tried to sleep. About five o’clock that morning Mrs. Reed came to her room and found prosecutrix greatly distressed, crying and almost hysterical. Prosecutrix then made complaint to Mrs. Reed that defendant had raped her during their drive from G-eery’s and showed Mrs. Reed her underclothing which was tom and bloody. Word was sent that day to the father of the prosecutrix, who lived some five miles distant, and he drove to Paris and reported the facts to the prosecuting attorney, and the defendant was arrested that evening. The day after this alleged assault a lady’s comb was found near a tree in front of the Francis farm and was identified as belonging to the prosecutrix. The prosecutrix’s mother testified to the smell of whisky on her daughter’s dress the day after the commission of the alleged crime, and also to the torn and soiled condition of her underclothing. Three physicians made an examination of the prosecutrix on August 14, 1903, and two of them testified they found bruised places and contusions on her limbs, and her private parts bloody, inflamed and tender. They testified further that there had been a penetration of recent occurrence and bloody water was exuding at the time of their examination.

On the part of the defendant, Mr. John Hurd testified that he passed defendant and the prosecutrix that night near the farm of Mr. Pugh — he was going east while they were headed west, and he rode to- one side to let them pass. He described their position in the buggy when he first saw them as “Laying down, as near as two people could be in a buggy, the buggy top was back, laid down; they were lying back in the buggy;” that the defendant had his left arm around prosecutrix’s neck, but he did not notice what he was doing with his other hand; that as they passed him the defendant raised up and sat upon the seat but she lay still until they had passed him some fifteen feet, when she raised up and sat by the defendant and appeared to speak to Mm but tbe witness did not bear.wbat she said. Tbe defendant testified that sbe asked him if be thought tbe man recognized them. There was evidence on tbe part of tbe defendant that tbe bouse of Mr. Francis was about seventy-five yards from tbe road and about balf a quarter from tbe cross-roads, and a half a mile from Zeno Reed’s, their destination. It was a clear, still nigbt, tbe moon shining. There was also evidence that there was nothing to obstruct sight or sound between Crump’s bouse and tbe cross-roads. Crump slept that nigbt on bis front porch on a cot and beard no cry or screaming; and when asked if be was easily awakened by noises or sounds, be answered, “fairly so.” The testimony tends to show that Francis was at home that nigbt and slept with tbe window open and did not bear tbe alleged screams or other noises, nor did bis wife. Mrs. Francis did not remember whether tbe windows or door were open that nigbt or not. Mrs. Reed did not bear any screams. There was testimony on behalf of tbe defendant that bis character was good in tbe neighborhood in which be resided. On bis direct examination, tbe defendant was asked by bis counsel whether be bad intercourse with tbe prosecutrix, and be answered that be did not but that be tried to in tbe buggy but did not because there was a man coming up on them, and after they passed Mr. Hurd be made no further attempt to have intercourse with her but drove on to Mr. Reed’s, got out of tbe buggy and helped her out and sat on a fence about four rails high, and talked about balf an hour and bade her good nigbt, when sbe went into her room and be went home. He testified further that tbe prosecutrix made no objection to bis attempt to have intercourse with her while in tbe buggy. He denied that sbe ever made any outcry either in front of Mr. Francis’s house or at tbe cross-roads or anywhere else on that trip home that nigbt. On cross-examination, be testified that after be and tbe prosecutrix left Mr. G-eery’s that nigbt be stopped to open a gate and made no further stop until they got in the branch near Mr. Pugh’s and after he léft that branch he never stopped until he' reached Mr. Reed’s residence. He testified that on that ride he had been hugging and kissing the prosecutrix and when they got to the branch at Pugh’s he asked her to have intercourse with him and she consented. He further testified, however, that in his attempt to have intercourse with her, near Pugh’s, there was probably partial penetration; in fact he knew that he partially succeeded ; that after passing Mr. Hurd nothing more was said about having intercourse.

It appears from the record that the first complaint filed by the prosecuting attorney in this cause charged the defendant with assault with intent to rape. This information was filed upon the information furnished prosecuting attorney by the father of the prosecutrix. There was no evidence impeaching the good character of the prosecutrix.

When the case was called for trial, the prosecuting attorney asked leave to recall a subpoena he had caused to be issued for three parties as witnesses for the State who were on a special jury panel for the trial of this cause. The court permitted him to recall the subpoena against the objection and exception of the defendant and to examine them as to their qualifications as jurors. But as to this last alleged error, it is not assigned as a ground in the motion for new trial, and, hence, it will not be necessary to notice it further. The instructions will be noted in the course of the opinion. Numerous errors are assigned for the reversal of the judgment.

I. The first ground of error relates to the action of the court in permitting the prosecuting attorney to recall the subpoena for the three jurors on the regular panel; but, as already said, this alleged error is not before us for review at this time, for the reason that it was not in the motion for a new trial. It was a matter of exception, and, if the defendant desired to have the judgment of this court upon that point, it was clearly his duty to have made it a ground in the motion for new trial and have given the circuit judge an opportunity to review his action thereon. This is too well settled in this State to admit of discussion. [State v. Marshal], 36 Mo. 404; Ross v. Railroad, 141 Mo. l. c. 395, and cases cited.]

II. Error is also assigned to the action of the court in permitting Mrs. Reed to testify in rebuttal to matters she had already testified to in chief. The testimony related to certain conversations which it was claimed she had with certain of the defendant’s witnesses. While some reference was made to the said conversations in her evidence in chief, the State was entitled to have her testify in rebuttal that she made no such statements to the defendant’s witnesses as testified to by them. Moreover, the order of testimony is a matter that must necessarily be left in a great degree to the discretion of the trial court, and an examination of this evidence discloses no abuse of that discretion. [State v. Murphy, 118 Mo. l. c. 15; State v. Buchler, 103 Mo. 203.]

III. The court refused instruction No. 5 asked by

the defendant and modified instructions Nos. 3 and 4 as prayed by the defendant. No exception was taken to the action of the court in thus modifying and refusing the instructions as asked, and, hence, the action of the court is not before us for review as to those instructions. While the instructions given by the State of its own motion were assigned as error in the motion for new trial, only two of said instructions are challenged in the brief of the defendant and in the oral argument of his counsel in this court, to-wit, instruction No. 4 and instruction No. 5½. Instruction No. 4 is in these words: “The court instructs the jury that the defendant is a competent witness in his own behalf, and his testimony is to be weighed by the same males that govern the testimony of other witnesses, but in passing upon the weight to be given his testimony the jury may take into consideration the fact that he is the defendant in the cause, and his interest in the result of the trial.” The objection to this instruction is not new in this court, but in the form in which it is given it has been substantially approved by this Court in a number of cases. [State v. Cook, 84 Mo. l. c. 46; State v. Maguire, 69 Mo. 197; State v. Zorn, 71 Mo. 415; State v. McGinnis, 76 Mo. 326.; State v. Young, 105 Mo. l. c. 638 and 639.] There was no error in this instruction. Instruction No. 5½ is in these words: “The court instructs the jury that if they find from the evidence in the cause beyond a reasonable doubt that at any time within three years next before the 21st day of December, 1903, at the county of Monroe, in the State of Missouri, the defendant did then and there ravish and carnally know the prosecutrix, Minnie Whittaker, forcibly and against her will, then in such case the jury will find the defendant guilty of rape as charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of not less than five years or at death. The court further instructs the jury that before they can find the defendant guilty of rape as charged, they must find from the evidence that there was some degree of entrance of the private parts of Minnie Whittaker by the private parts of the defendant, and that defendant used force upon her to accomplish it, and that she manifested the utmost reluctance thereto, and did not consent to the same, and made such resistance as she was capable of to prevent it; and whether or not that consent was or was not given may be inferred from all the facts and circumstances given in evidence.” This instruction is criticised because the court used the expression “That there was some degree of entrance of the private parts,” etc., instead of using the word penetration; and because it further says that the jury must find that the prosecutrix manifested the utmost reluctance. We think there is no merit in these assaults upon the instruction, especially when taken in connection with instructions numbered 1, 2 and 6, given on behalf of defendant and at his request. The instructions on the whole were exceedingly favorable to the defendant.

IV. Finally, it is insisted that the verdict of the jury is so manifestly the result .of prejudice and bias and so absolutely without credible'evidence upon which to base it, that this court should reverse the judgment. It is fundamental that this court will not enter upon an examination of the mere weight of evidence and usurp the province of the jury in that regard; but, if there is no evidence, or if, the evidence all taken together, the verdict is clearly the result of prejudice, passion or partiality, this court will interfere and set aside the verdict. [State v. Primm, 98 Mo. l. c. 373, 374, and cases cited.] In State v. Marcks, 140 Mo. 656, the necessity of corroboration of the testimony of a prosecutrix in a case of rape was considered by this Court in Banc, and the conclusion was reached that at common law there was no absolute rule of law requiring corroboration in prosecutions of rape as is the case in treason or perjury or seduction under our statutes. And the rule in this State is well settled that there is no rule of law which forbids a jury to convict one charged with this crime on the uncorroborated testimony of the prosecutrix if the jury are satisfied beyond a reasonable doubt of the truth of her testimony. Lord Hale, in his Hale’s P. C., 633, stated the rule to be, "The party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that concur in that testimony.” In the record before us, the fact that the defendant on the night of the alleged rape was alone with her at least as late as midnight on the public highway between Mr. Reed's and Mr. Greery's was clearly established, not only by the prosecutrix but by the defendant himself and Mr. Hurd. That the defendant was possessed of the desire to have illicit intercourse with the prosecutrix and that he made an attempt to do so on that evening is established out of his own mouth. The character of the prosecutrix for chastity and veracity stands entirely unimpeached anywhere in the record, save by the testimony of the defendant himself. If the testimony of the prosecutrix was believed, as it evidently was, by the jury, the defendant on the way home that night began by making indecent proposals to her and by attempting improper liberties with her person, and in pursuance of his purpose attempted to have her drink whisky with him. According to her evidence, when she had resented and rejected his indecent proposals, he forcibly pulled her from the buggy and forcibly outraged her. She testified that she resisted with all the power that she could command and that he only succeeded after she had resisted to her utmost. The jury saw her demeanor upon the witness stand, her manner of testifying, and accepted and believed her testimony. This being true, there could be no doubt whatever of the sufficiency of the evidence. While the charge of rape is an accusation easy to make, itis also hard to be proved. In the very nature of the case it is committed when only the party who commits the rape and his victim are by themselves. It is not a crime likely to be attempted in the presence of other witnesses or in a public place. Much stress is laid in the argument upon the fact that there were résidences near the road where this alleged crime was committed, but this also was a question for the jury to consider. It occurred at the dead hour of night when the occupants of these residences along the road were Sound asleep. It is also insisted that her failure to make complaint immediately upon her reaching the Reed home that night is of itself sufficient to show the had faith of this prosecution. In State v. Mareks, supra, this phase of the case also was fully examined in the light of the authorities, and it was there held that the delay to make complaint may be explained by showing that it was caused by threats or undue influence of the prisoner. It is in truth a question purely of fact to be determined by the jury, and how much the delay in making the complaint ought to weigh against the prosecution must depend upon the circumstances of each particular case. When it is considered that the question as to the time of night when the defendant and the prosecutrix reached Mr. Reed’s home that morning was one also for the jury to determine, and if the jury believed and found that they did not reach Reed’s home until two o’clock in the morning, the fact that this girl did not at once arouse the whole family but went to her room and did not tell anyone until the next morning, about five o’clock, can it be said, as a matter of law, to be such unreasonable delay as to impeach her veracity and utterly discredit her? It must be remembered that she was not at the home of her father and mother and that her natural instincts would cause her to hesitate as to what she should do; but when she does, immediately upon meeting Mrs. Reed as early as five o’clock the next morning, make a full disclosure of the outrage that had been committed upon her and is found in a state verging upon hysteria, it is too clear for argument that this was a circumstance for the jury to weigh in making up their verdict. There is another circumstance to be considered in regard to the testimony of the prosecutrix — her relation to the defendant prior to this night and up to the time of this assault was of the most friendly, and we may even say affectionate character. No motive was shown why she should deliberately perjure herself or why she should desire to have the defendant unjustly convicted unless to punish him for the outrage upon her. The same may be said in regard to the evidence of Mrs. Reed and Mrs. Whittaker. No attempt was made to impeach their reputation as good women. The mere fact that there was some evidence contradictory of that given by them is no ground for the interference of this court. All these contradictions and seeming contradictions were matters peculiarly within the province of the jury. The jury could believe or disbelieve their testimony and they could reject and disbelieve the testimony of the witnesses who contradicted them. Likewise the evidence of the defendant was peculiarly a question for the jury to weigh. When he took the witness stand he positively asserted that he did not have intercourse with her on that night; afterwards he admitted he tried to, and that he partially succeeded and used a little force to accomplish this purpose. With this evidence before them it cannot be said that the jury were without corroborative evidence of that of the prosecutrix. The evidence places the parties together. Her evidence was plain, straightforward, to the fact¡ that he ravished her on that evening. Her evidence was corroborated by the fact that her clothing was tom and the unquestionable evidence that her parts had been penetrated. This evidence was corroborated by the defendant’s own testimony of his attempt to have intercourse with her on that night. But, evidently, the jury were brought to the point where his evidence must either be accepted or rejected — the account given by him of his efforts at copulation that night was wholly variant from the physical facts discovered by the physicians and by the condition of the torn clothing and lacerated parts. The jury saw fit and had the right to believe and accept the story of the prosecutrix as to the occurrences of that night, and it serves no good purpose to spread upon the reports of this court all the details of the testimony. We have read and carefully considered it, and in our opinion there was ample evidence to justify the jury in reaching the conclusion which they did, and this last ground of error, to-wit, that the verdict is so contrary to the evidence and the weight of the evidence that the verdict cannot stand, must likewise he ruled against the defendant. There are some other minor points discussed in the brief; but, upon a review of the whole record, we find no reversible error, and the judgment of the circuit court must be and is affirmed.

All concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    THE STATE v. WILLIAM MATZINGER, Appellant.
    Division Two,
    December 12, 1905.
    APPELLATE PRACTICE: No Exceptions. Where appellant files no hill of exceptions, there is nothing before the appellate court except the record proper, and if that is free from error, the judgment will he affirmed.
    Appeal from Buchanan Criminal Court. — Ho». B. J. Casteel, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and A. T. Gentry, Assistant Attorney-General, for the State.
   BURGESS, P. J.

On the twenty-third day of October, 1903, the defendant was convicted, in the criminal court of Buchanan county, of murder in the second degree, and his punishment assessed at fifty years’ imprisonment in the penitentiary, for having killed and murdered, with a pistol, at said county, on the 10th day of July, 1903, one Etta May Gillmore. Defendant appeals.

No bill of exceptions was filed in this case; so that there is nothing before ns for review except the record proper, and that appears to be free from error.

The judgment should be affirmed. It is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. JAMES E. KELLEY, Appellant.
    Division Two,
    December 12, 1905.
    1. INFORMATION: Signature of Prosecuting Attorney: Initials. The signing of an information by a prosecuting attorney by the initials of his given name and as prosecuting attorney is sufficient.
    2. FLIGHT: Evidence. Testimony of the sheriff and constable that they made diligent search for defendant at his home, but could not find him, and finally located him in another county, when taken in connection with letters written by defendant to the prosecutrix, in which he declared his intention of leaving and taking her with him, and her testimony that defendant had arranged to meet her and take her away — was sufficient evidence of defendant’s flight to justify its submission to the jury.
    3. INSTRUCTION: “Lack of Evidence:” Meaningless Phrase. An instruction told the jury: “Before you can convict the defendant you must be satisfied from all the evidence, or lack of evidence, that he is guilty, which guilt must be established by the evidence beyond a reasonable doubt,” etc. Held, that the phrase, “lack of evidence,” as used in the instruction, was wholly uncalled for and utterly meaningless, but that the instruction viewed as a whole could not have misled the jury, and therefore the giving of it did not constitute reversible error.
    4. CARNAL KNOWLEDGE: Correspondence: After Crime Committed. Letters written by defendant to the prosecutrix after the criminal intercourse, which tended to corroborate the testimony of the prosecutrix, and were in the nature of an admission of defendant’s criminal conduct, were properly admitted in evidence.
    5. -: Instruction: Singling Out Witness: Invited by Defendant. When defendant has singled out the prosecuting witness and asked the court to instruct th'e jury that the prosecutrix stands impeached because she has made contradictory statements, and that the jury cannot convict upon her testimony (which instruction was properly refused) he is in no position to complain because the court instructs the jury that they may consider the circumstances under which the prosecutrix made the prior contradictory statements, her age, condition in life and environments, in connection with all the other evidence in the case.
    6. -: -: Letter. Defendant requested the following instruction: “The letter in evidence . . . even if you should believe the defendant wrote it, does not prove the charge against the defendant, and upon said letter alone you can not convict him.” This instruction the court gave after adding, “but you should consider said letter in connection with all the other evidence in arriving at your verdict.” Held, no error.
    7. -: Previous Chaste Character: Presumption of Law. The law presumes that every woman is chaste until the contrary appears.
    8. -: -: Evidence. When it was shown that prosecutrix was a school girl of fifteen years, living in her father’s family, that no man prior to defendant had ever taken liberties with her person, and that she had never had sexual intercourse with any man, and defendant offers no evidence to the contrary, the previous chaste character of the prosecutrix is sufficiently proved.
    Appeal from Polk Circuit Court. — Now. Asbury Burk-head, Judge.
    Affirmed.

      Rechow & Pufahl and Johnson & Sea for appellant.
    (1) An initial is no name. The motion to quash, should have been sustained. The information must be presented by the prosecuting attorney, and this means in the name by which he was elected, commissioned and qualified. E. S. 1899, sec. 2477; Skelton v. Sackett, 91 Mo. 379; Martin v. Barron, 37 Mo. 301; 1 Bishop on Criminal Procedure (1 Ed.), secs. 119 and 120; State v. Martin, 10 Mo. 391; State v. Wall, 39 Mo. 534. (2) Defendant’s motion to strike out the pretended evidence as to flight should have been sustained.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) There is no merit in the contention that the name of the prosecuting attorney should have been written in full in and at the end of the information. The way in which he usually signed his name, “L. Cunningham,” was sufficient. State v. Brock, 186 Mo. 457. (2) The letter written by defendant to the prosecutrix was competent evidence. State v. DeWitt, 186 Mo. 71; State v. Sibley, 131 Mo. 528; Bracken v. State, 111 Ala. 68'; State v. Bell, 79 Iowa 117; Underhill on Crim. Evid., secs. 528. (3) The State’s evidence on the subject of the previous chaste character of the prosecutrix was sufficient. It' is the fact of her previous chaste character, and not of her previous good reputation, that the statute requires. R. S. 1899, sec. 1838; State v. Napper, 141 Mo. 404; State v. Hunter, 171 Mo. 440.
   GANTT, J.

On April 28, 1904, the prosecuting attorney of Polk county filed an information in the circuit court, charging defendant with having carnal knowledge of Blanch E. Long, an unmarried female of previous chaste character, between the ages of fourteen and eighteen years. The alleged criminal act occurred on January 15, 1903; the information was duly sworn to by the prosecuting attorney. After a plea of not guilty, defendant filed an affidavit asking for a change of venue on account of prejudice of Hon. Argus Cox. The application was granted, and Hon. Asbury Burkhead, judge of the thirty-first judicial circuit, was called into the case. After the overruling of his motion to quash, and granting him a continuance, defendant was put upon his trial at the October term, 1904, and convicted, his punishment being assessed at two years in the penitentiary.

The prosecuting witness testified that at the time of the commission of the alleged- crime she resided with her parents in Polk county, Missouri, a few miles north of Bolivar, in the Hayden school district. The defendant was her school teacher for six months, and often accompanied her along the road; that he lived about a quarter of a mile from her father’s. The school usually closed every day at 4 p. m. There was a spring house a short distance from her father’s and tolerably close to the public road, the house being surrounded by timber. To this spring she went every afternoon for water, and defendant often met her there about dusk; this was during September, 1902, and January, 1903. At these meetings defendant would hug and kiss prosecutrix, and had sexual intercourse with-her several times. Defendant, at the time professing love for her, told her that he would take her away, and they would be happy together. A short time after this school term closed, defendant moved away, and prosecutrix and her parents moved to Bolivar. Defendant visited them at their home, remained over a night or two with them. Defendant told her not to say anything about their relations, or it would send him to the penitentiary. Afterwards defendant moved to Fleming, and corresponded with her. At defendant’s suggestion, she used his postoffice box, No. 335, at Bolivar. She received a letter from him once a week, which she answered. In these letters defendant still continued to tell her of his affection for her; these letters were addressed to B. E. K., box 335. A letter written by defendant on January 22, 1904, addressed in that way, was received by prosecutrix, lost by her on her way home from school, found by one of the school girls and given to her mother. Prosecutrix was unmarried and of previous chaste character; defendant had a wife but no children living at this time. Prosecutrix never told of her intimacy with defendant till some time after this letter was found. She had made arrangements with defendant to go on the train with him to Kansas City the next Sunday; but the letter was lost and found on the Thursday before. Defendant had promised that he would get a divorce from his wife and marry prosecutrix; this promise was made at the time of the first act of intercourse. At defendant’s request she swore before the grand jury that defendant never had had sexual intercourse with her. At defendant’s request she made an affidavit before the probate judge to the same effect. This affidavit was procured at the request of one of defendant’s attorneys and signed at a time when neither of the parents of the prosecutrix was at home, and signed in the presence of defendant. When her mother was talking with her a few days later the prosecutrix admitted to her that defendant had had sexual intercourse with her. An affidavit was made before the circuit clerk and this information was filed.

The postmaster at Bolivar testified that ’box 335 was rented by defendant and used by him while he lived there. Just before defendant left Bolivar, he rented this box for another quarter and paid the box rent. Letters were frequently received at this post-office, directed to B. E. K., box 335, and were put in this box. A letter thus directed and sent was identified by prosecutrix and read in evidence; it is as follows:

“Flemington, Mo., Jan. 22, 1904.

“My Darling Blanche:

“I will write you today it is a cold lonesome looking day and oh how I long to be with you darling and have a good time; say Darling I read your sweet letter I got when I was there. You said you tried to think you didn’t love me but could not think so. O! my Darling I don’t try to think I don’t love you for I do love you better than anyone else. Oh! I wish I could be with you as I was last winter; yes I wish I could see your sweet little face coming to meet me as you did last winter when you would meet me at the spring house and put your arms around me and give me a sweet kiss but alas! those dear school days have passed and gone but my love is still as true to you as it was then I dream of you often. I get into trouble sometimes and think perhaps my Darling may go back on me and take another, but I can’t believe you will Oh! Darling I have just been thinking about the last night of the Haden school how hard it was to leave you then but Darling it won’t be long till we will be together all the time if you stick to me.

“Darling, do stick to me all the time I can see your sweet face in my dreams Oh! the night I was at your house was the happiest time for me for a long time Oh! my sweet littel wife, how I love you.

“Darling, I just got your letter and Ada and mother are going to Mr. Franckas. I am glad you are not going because I am not going. Darling don’t worry about your things. If you can’t get them I can buy more for you, and if nothing happens we will leave in two or three weeks. Your letter was so sweet and you are sweeter than anything or anybody in the world. Yes, we must love God best of all and one another next.

“Be watching for me any time darling.

“by by wife dear

“ J E K to B E K.

“1000 million X O

“Yours forever

“I will kiss Cicil for you now.”

Prosecutrix, her mother and a banker in Bolivar testified that this letter was in defendant’s handwriting. Prosecutrix also testified that defendant told her that when he wrote X and O he meant hugs and kisses.

The constable and sheriff testified that when the warrant for the arrest of. defendant was placed in their hands they made diligent search for him in and around his home but could not find him. He was finally arrested by the marshal of Weaubleau, in Hickory county.

Defendant took the witness stand and simply denied having had sexual intercourse with prosecutrix. The probate judge testified that he read the affidavit to prosecutrix before she signed it, and told her not to sign it unless it was true. No one was present at the time at her home, except the probate judge, prosecutrix and defendant. There was some evidence that defendant had a good reputation prior to this time; but some of defendant’s witnesses on that subject admitted, on cross-examination, that there had been two ugly reports reflecting on defendant’s character prior to this trouble.

The instructions and assignments of error will be noted in the body of the opinion.

Numerous grounds for reversal of the judgment have been advanced by the counsel for defendant, both in their brief and in oral argument. These will be considered in the order of their assignment.

I. The information was assailed by a motion to quash for the reason that the prosecuting attorney Lieutellus Cunningham described himself as “L. Cunningham” in the body of the information and signed the same simply by his initial instead of his full name.

Counsel recognize that in State v. Brock, 186 Mo. 457, this court in the case of an information signed in this same manner by this same prosecuting attorney, held that the signing of an information by a prosecuting attorney by the initials of his given name and as prosecuting attorney was sufficient, but they urge a reconsideration of that decision. On the hearing of the motion to quash it was stipulated that Lieutellus Cunningham was the duly elected, qualified and acting prosecuting attorney of Polk county and that it was his usual custom to sign all official documents by the name and style of “L. Cunningham.”

Among other eases cited by counsel for defendant in support of their contention is Skelton v. Sackett, 91 Mo. 377, wherein the name of a non-resident, defendant was designated as Q. R. Noland and there was no personal service, and it was held void, but in the subsequent case of Mosely v. Reilly, 126 Mo. 124, an order of publication directed to “C. T. Clements” describing him as the owner of the land against which a judgment was sought to enforce delinquent taxes, was held sufficient.

The decision in this last case is entirely in consonance with reason and common sense. If a party take a deed to himself by his initials and put it to record, no good reason can be assigned why he should not be sued by the name which he has assumed to the public. This is true in business transactions in which a Christian name is rarely ever written in full. In 14 Ency. Pl. and Pr., p. 277, the rule is stated that one may adopt any name he pleases in his business transactions and such name or any name by which he is usually known and called is sufficient, by which to designate him in civil or criminal proceedings instituted against him, and he is estopped from repudiating a name under which he contracts. If this is true as to a defendant, how much stronger the rule should be where one sues or prosecutes by the usual initial of his given name, and at the same time designating himself, as in this case, “as prosecuting attorney.” We think now as we did in the Brock case that there is no merit in the point. No possible injury could come to the defendant because the prosecuting attorney did not write his given name in full but signed it in his usual business and official way.

II. It is next insisted that the court erred in not striking out the evidence as to the flight of the defendant.

The constable and the sheriff both testified that when the warrant was issued for the arrest of defendant they made diligent search for defendant at and around Ms home and at different places where they had reason to expect he might he found, and could not locate him, and finally heard he was at Weaubleau, in Hickory county, where they secured his arrest by the marshal of Weaubleau. No explanation was vouchsafed by defendant as to his absence from his home and county. While the evidence of flight was not as strong as it might have been, we cannot say it was so wanting in probative force when taken in connection with the written assertion of defendant of Ms intention to leave with the prosecutrix and her testimony that he had arranged to meet her and go to Kansas City. We think an inference might legitimately have been drawn by the jury that he was concealing himself with a view to avoid arrest until he and the prosecutrix could flee the country.

III. The instructions are challenged. The fourth instruction is in these words: “Before you can convict the defendant you must be satisfied from all the evidence, or lack of evidence, that he is guilty, which guilt must be established by the evidence beyond a reasonable doubt, but a doubt to authorize an acquittal on that ground alone should be a reasonable one and not a mere possibility of innocence.”

It is apparent, we think, that this was a clumsy effort to conform the instruction on reasonable doubt to a remark in State v. Blue, 136 Mo. l. c. 44, but what was there said in no manner justifies the interpolation of the words “or lack of evidence,” in the connection in which they appear in this instruction.

Certainly the circuit court did not mean to instruct the jury that a failure of proof by the State would justify a conviction, because immediately thereafter it told the jury that “the guilt of defendant must be established by the evidence beyond a reasonable doubt.” The phrase, “lack of evidence,” while wholly uncalled for, must be treated as utterly meaningless when considered with the context of the instruction. Viewed as a whole the instruction could not have misled the jury, and we would not he justified in reversing the cause on this ground.

IV. It is urged that the court should have excluded the letters and correspondence between defendant and prosecutrix which took place after the alleged criminal intercourse.

We think there was no error in the action of the court in this regard. The letters tended strongly to corroborate the testimony of the prosecutrix and were in the nature of an admission of defendant’s criminal conduct. It was not evidence of a new crime but related to the offense for which he was on trial. [State v. DeWitt, 186 Mo. 61; State v. Sibley, 131 Mo. 528, 529.]

V. The instruction on good character was in the interest of defendant and such as has often been approved by this court.

VI. The criticism of the instruction on flight, we think is not well founded. If the jury found that the defendant fled from the county to avoid arrest and trial for the offense charged, then it did become a fact which they might take into consideration in determining his guilt or innocence.

VII. The defendant prayed the court to give the following instruction: “One way of impeaching a witness is by showing that she made different statements or some differently from the testimony given at the trial, and in this case it stands admitted by the prosecutrix, Blanche Long, that she swore differently before the grand jury at the last April term of this court. She therefore stands impeached and you cannot convict upon her testimony.” Obviously this instruction should not have been given, when all the testimony is considered.

Instead, the court gave the following instruction: “Although you may believe from the evidence in this case that the witness Blanche Long made statements under oath at times previous to her examination in this case, at variance with and contradictory to her testimony in this case, yet you may consider the circumstances under which she made such prior statements, the age of the witness at the time, her condition in life and her environments, together with her relation to the parties interested in the case, and the whole in connection with all the other evidence in the case in determining the truth as to the questions at issue.”

It is now insisted this instruction was error in. singling out the one witness and commenting on her evidence. It must be remembered the defendant had singled out this witness and asked the court to direct the jury she was impeached and that they could not convict on her testimony, As already said, the court properly refused this instruction, but having been specially requested to instruct on her evidence, the court then gave the ninth instruction as above. We do not think the defendant is in a position to complain of this charge. While we think the matter might have properly been left with the sixth instruction, the instruction is not a comment on-the evidence of the prosecutrix. It leaves the whole of it, the unfavorable and the favorable, all to the jury to consider. It is no more so than the sixth instruction. Invited as it was by defendant, we do not think it reversible error.

VIII. Clearly the eleventh instruction was not error. It was asked by defendant in these words: “The letter in evidence of date January 22nd, 1904, even if you should believe the defendant wrote it, does not prove the charge against the defendant, and upon said letter alone you cannot convict him.” To this the court added, “but you should consider said letter in connection with all the other evidence in arriving at your verdict.” There is no merit in this assignment. The letter was competent, damaging evidence and it was the duty of the jury to consider it.

IX. It is insisted that error was committed in not giving an instruction limiting the effect of the letters which were offered to prove defendant’s signature to the letter in evidence by comparison. Those letters are not in the record and we have no1 means of judging whether they could have prejudiced the defendant; but as the offer was simply to prove the handwriting, the jury could not have been misled as to their purpose.

X. The final contention is that there was no proof that the prosecutrix was of previous chaste character. The evidence was that at the date of the commission of the offense she was a girl fifteen years old, a school girl. She had never received the attentions of any man. Had lived in her father’s family and no man had ever taken any liberties with her person before the defendant. There is not a syllable of evidence tending to impeach her good character. Evidence of her general reputation for chastity would not have availed her because the statute required previous chaste character, not mere repute.

The law presumes that every woman is chaste until, the contrary appears, and it was said in State v. McCaskey, 104 Mo. l. c. 648: “Evidence of previous chastity of the seduced woman which is required in some States, must in the nature of things be only slight, but there can be no difficulty in proving ‘good repute’ as required by our statute if the woman be of ‘good repute.’ ” In the 6th “Cyclopedia of Law and Procedure,” p. 978, “Chaste” is defined as, “pure from all unlawful commerce of sexes; applied to persons before marriage, it signifies pure from all sexual commerce, undefiled.” When, therefore, it was shown in this case the prosecutrix was a school girl of fifteen years, living in her father’s family, and had never had any men associates; that no man prior to defendant bad ever taken liberties with ber person and sbe bad never bad sexual intercourse with any man, tbe State’s case was made. If defendant bad been able to sbow that tbe contrary was true; that sbe bad in fact bad sexual intercourse witb a man previous to ber defilement by defendant, then tbe State should bave failed. But no sucb evidence was offered and no attempt was made to rebut tbe State’s case. Tbis point likewise must be ruled against defendant. We bave considered all tbe grounds for reversal and in our opinion there was no reversible error committed and tbe judgment must be and is affirmed.

All concur.


text:
    FUESS, Appellant, v. KANSAS CITY and THE BROOKLYN AVENUE RAILWAY COMPANY.
    Division Two,
    December 12, 1905.
    1. GRADING STREET: Damages to Abutting Lots: Measure of Damages: Benefits. The measure of damages to lots abutting on a street whose grade has been changed by the city is the difference between the value of the lots prior to the change of the grade and the value after the change was made; and if the benefit to the lots, if any, by the change of the grade, more than compensates for the damages, if any, sustained, then the owner cannot recover.
    2. -: -~: -: Benefit to Public Generally: Theory of. Trial: Different Theory on Appeal. Cases must be heard in the appellate court and considered upon the same theory upon which they were tried in the lower court. Where a ease was tried in the lower court upon the theory that the damage to the lots abutting on a street whose grade was changed by the city, was the difference in the value of the lots before and after the change, and- if there was any benefit to the lots due to the change of the grade that difference should be lessened by that benefit, the appellant lot owner, on appeal, will not be heard to contend that the case was tried on-the wrong theory, and that it should have been tried on the theory that in reducing the damages, only those benefits which are peculiar and special to the particular lots, and not those which are common or general to the properties in the neighborhood, can be considered or taken into account.
    S. -: -: Cost of Improvements. In a suit for damages to lots, caused by a change in the grade of the street upon which they abutted, testimony as to the difference in the cost of putting in foundations for buildings on the lots before the change in the grade of the street, and the cost afterwards, there being no intimation in the questions as to the dimensions of the walls and buildings which might have been, or were to be, constructed, should be excluded as being too indefinite and speculative.
    4. -: -: -: Taxbills. In such suit, it was not reversible error to exclude taxbills issued by the city, for curbing and paving in front of the property. They were competent only to show that the lots had some value, but the issue in such, suit was not whether the lots were of value, but whether they had been damaged by the change in the grade of the street.
    Appeal from Jackson Circuit Court. — Bow. Edw. P. Gates, Judge.
    Affirmed.

      Botsford, Deatherage £ Young for appellant.
    (1) The trial court tried the case on a wrong theory. The theory of the trial court was that the defendant, for the purpose of reducing the damages suffered by plaintiff, had a right to prove the general benefits to property in general from this class of public improvements. If anything may be considered as established law in this State, it is that in reducing damages in cases like this, only those benefits which are peculiar and special to the property in question and not common or general to properties generally, can be considered or taken into account. Railroad v. Chrystal, 25 Mo. 545; Railroad v. Richardson, 45' Mo. 466; C'ombs v. Smith, 78 Mo. 39. Applying the rule decided in the last case cited to the case at bar, there being no evidence in this case proving special benefits to the property in controversy from the grade and fill by the defendants in Highland avenue, and there being no evidence of such special benefits, it follows that there was no basis for the instruction on the subject of benefits contained in said instruction number one for the defendants given by the court. Cole v. St. Louis, 132 Mo. 639'; Hook v. Railroad, 133 Mo. 318 ; Spencer v. Railroad, 129 Mo.. 154. (2) The rulings of the trial court in excluding the testimony of witness Rowland as to the difference in cost in putting in foundations for buildings on this property before the grade was made and the cost afterwards were certainly erroneous. One way of determining the difference in the market value of the property before and after making such a grade is to enable the jury to see the difference between the cost before and after the improvements made by the grade. Smith v. Kansas City, 128 Mo. 33.

      John E. Lucas, Edwin C. Meservey, James W. Garner and Chas. E. Thompson for respondents.
    (1) The contentions of the respective parties will appear from the instructions asked and given, and we assert that the instructions given for plaintiff and defendants were harmonious and there was no conflict therein. La other words, there is no difference in the same. Plaintiff’s instruction one asked the court to declare that if the market value of the lots was depreciated and lessened by the fill, he was entitled to recover the difference therein, while defendant asked the court to declare (instruction one) that unless the damage — if any — was greater than the benefit done by the grading, there could be no recovery — the one being the converse of the other and both being given, (a) Horgan v. Brady, 155 Mo. 669. (b) However, there was no error in the instructions. The measure of plaintiff’s recovery was the difference in the market value of the land — if any — before and after, the making of the fill. Sheehy v. Railroad, 94 Mo. 574;'T'egeler v. Kansas City, 95 Mo. App. 166. Unless the reasonable cost of repairing the injury by restoring the property to its former condition, as near as may be, is less than such difference, then the latter is the true measure of damages. Smith v. Kansas City, 128 Mo. 23; Robinson v. St. Joseph, 97 Mo. App. 508. (2) The court did not err in excluding the testimony of Rowland as to the difference in cost in putting in foundations for buildings before the grade was made and the cost afterwards. The objection to this evidence was sustained on the ground that it was altogether too speculative. Robinson v. St. Joseph, supra.
   BURGESS, P. J.

This is an action for $5,000 damages, alleged to have been sustained by plaintiff by reason of the wrongful acts of defendants in raising the grade of Highland avenue in front of lots 3, 4, 5, 6, 7 and 8 in Weston’s Addition to Kansas City, of which lots plaintiff was the owner. The trial resulted in a verdict and judgment for defendants, from which plaintiff appeals.

The case was tried upon the theory that if the market value of the lots was depreciated and lessened by the fill, the plaintiff was entitled to recover, by way of damages, the difference between the value of the lots prior to the change of the grade of the street and the value after such change was made; but if the benefit to the lots, if any, by the raising of the grade, more than compensated for the damages, if any, sustained, then there could be no recovery.

There was evidence tending to sustain the theory upon which the case was tried, and the court instructed the jury accordingly.

The principal point relied upon by the plaintiff for a reversal of the judgment is that the case was tried upon the wrong theory, and that it should have been tried upon the theory that, in reducing damages in cases like this, only those benefits which are peculiar and special to the property in question, and not common or general to properties generally, can be considered or taken into account. The decisions of this court cited by plaintiff, viz., Railroad v. Chrystal, 25 Mo. 544; Railroad v. Richardson, 45 Mo. 466; Combes v. Smith, 78 Mo. 32; Railroad v. Ridge, 57 Mo. 599; Railroad v. Waldo, 70 Mo. 629; Cole v. St. Louis, 132 Mo. 633; Hook v. Railroad, 133 Mo. 313; Spencer v. Railroad, 120 Mo. 154; Hickman v. Kansas City, 120 Mo. 110; Nagel v. Railroad, 167 Mo. 89, are cases relating to proceedings to condemn property for public use, or damages to property condemned for such purpose. Such decisions are all one way and in accord with plaintiff’s contention. It has always been held by this court, however, that cases must be heard in this court and considered upon the same theory upon which they were tried in the lower court. Thus, in the case of Horgan v. Brady, 155 Mo. 659, Marshall. J., in speaking for the court, said: “The plaintiff is limited on appeal to the theory on which she tried her case in the lower court, for it would be manifestly unjust to convict that court of error in respect to matters upon which it never ruled, and upon claims of rights that were never called to its attention. This is axiomatic in appellate practice, and has been the accepted rule, certainly since 1868. [Trigg v. Taylor, 27 Mo. 245; Walker v. Owen, 79 Mo. 563; Tomlinson v. Ellison, 104 Mo. 105; Hart v. Leete, 104 Mo. 315; Minton v. Steele, 125 Mo. 181.]"

It is said by plaintiff that the court, in excluding the evidence of witness Rowland as to the difference in cost in putting in foundations for buildings on this property before the grade was made and the cost afterwards, committed error. It is argued that this was one way of determining the difference in the market value of the property before and after the changing of the grade, and to enable the jury to see the difference between the cost of improving the property before such change in grade and afterwards. The objection to the evidence in question was sustained on the ground that it was too indefinite, there being no intimation therein as to the dimensions of the walls and buildings which might have been, or were to be, constructed. In Robinson v. City of St. Joseph, 97 Mo. App. l. c. 508, it is said: “Nor do we think it [the trial court] erred in refusing to permit the defendant to inquire of the witnesses whether or not in their opinion if the plaintiffs had expended the amount recovered for the injuries occasioned by the grading of Penn street in the lowering of the surface of their lots and improving them that the grading of Twenty-eighth street and the alley would have injured their said lots. The pertinent question was, what was the actual market value immediately before the injury, and not what it might have been, had certain conditions existed. The latter is too speculative and theoretical, and it is not that contemplated by the rule for the ascertainment of damages in a case like this."

In the case of Smith v. Kansas City, 128 Mo. 23, and upon which plaintiff chiefly relies for authority to support his said contention, the property was improved, and the question was as to the cost necessary to restore the property to the relative position it bore to the street before the change in the grade of the street was made, while in the case at bar the property was unimproved, and the estimate of costs of prospective foundations for buildings would be entirely speculative. In the Smith case conditions existed which would enable a witness to form a sound or approximately correct opinion as to the cost of necessary improvements; in this case, there was nothing save theory and airy speculation upon which to rest an opinion.

Another contention is that error was committed in excluding certain taxbills, issued by the city against the property in question, and offered in evidence by the plaintiff in support of the theory that the property was of some value. These taxbills were for paving and curbing in front of the property. That this evidence was not admissible for any purpose other than to show that the property was of some value we think clear. The question was not whether the property was of value, but whether it was dámaged by the acts of defendants in raising the grade of the street in front of it. In any event, the judgment should not be reversed because of the exclusion of said taxbills as evidence.

Our conclusion is that the judgment should be affirmed. ' It is so ordered.

All concur.


author: FOX, J.

text:
    ANNA D. GAGE et al. v. CANTWELL et al., Appellants.
    Division Two,
    December 12, 1905.
    1. CONVEYANCE: Identification of Grantee. In a suit to try, ascertain and determine tlie title of the parties to a certain tract of land, brought by plaintiffs as the wife and only child of E. L. Gage, testimony by the wife that B. L. Gage was her husband, that he resided at Alpine, Texas, that he died in Chicago, that he owned and claimed the land in suit and that she had heard some months before that it had been sold for taxes, and a deed under which he claimed title describing him as “E. L. Gage of Alpine, Texas,” identified the B. L. Gage who died in Chicago as the same E. L. Gage named as grantee in the deed.
    2. TAX TITLE: Suit Against Deceased Person. A judgment in a suit for taxes against a deceased person and a sale under execution conveys no title.
    3. QUIETING TITLE: Chain of Deeds: Common Source. In a suit to quiet title where plaintiffs claim as heirs at law of E. L. Gage and introduce a deed from a record owner to E. L. Gage and a judgment for taxes against E. L>. Gage and a sale to defendants, and testimony to show that E. L, Gage was dead when the suit for taxes was begun, and defendants offer no evidence, neither party being in possession, there is a sufficient showing of a common source of title to authorize a judgment for plaintiffs.
    Appeal from Washington Circuit Court. — How. F. R. D earing, Judge.
    Affirmed.

      Anthony & Eversole and Echo. DeArcy for appellants.
    (1) The court erred in finding that E. L. Gage, the party taking deed under S. D. Cohherly, was the same person as the party mentioned as E. L. Gage, in the deposition of Anne D1. Gage, who died in Chicago in 1892. Identity of name is not equivalent to identity of person. Lucas v. Land Co., 186 Mo. 445. (2) Thefinding of the court, as to the fee simple title, or any finding of right, title or interest in plaintiffs was error. The plaintiffs having alleged that they were the owners in fee of the premises in the petition described,, were required to prove it. Meriwether v. Love, 167 Mo. 514. (3) Common source of title only applies where there is possession under one who is a common source of title and was in possession. Cunningham v. Powell, 97 Mo. 525; Fellows v. Wise, 46 Mo. 350; Brown v. Brown, 45 Mo. 412; Matney v. Graham, 59 Mo. 190'; Alexander v. Campbell, 74 Mo. 142; Hunt v. Railroad, 75 Mo. 252, (4) There is no allegation or proof of any possession by the plaintiffs, and where there is no title on either side the prior possession under claim of title will prevail, but the plaintiff having failed to prove the allegations of the petition, the defendants were not required to prove their right to the said premises, whether by right of legal title or possession. Mulherin v. Simpson, 124 Mo. 610; Bledsoe v. Simms, 53 Mo. 305. (5) The court erred in permitting plaintiffs to introduce in evidence the deed of S. D. Cobberly to E. L. Gage. No title having been shown in S. I). Cobberly and no possession having been shown in E. L. Gage under said deed, the same was incompetent and irrelevant for all purposes, there being no showing that the said deed was ever delivered, or that the person mentioned as grantee in said deed and the E. L. Gage mentioned in the deposition of Anne D. Gage, were one and the same person.

      Warren D. Isenberg for respondents.
    (1) Identity of name under proper circumstances is prima facie proof of identity of person. In this case it is positively proved and the court so found. Lucas v. Land Co., 186 Mo. 445, is good law under facts of that case, but has no application in this case. (2) As between the parties to the suit plaintiff showed a fee simple title — one which defendants sought to acquire. The recital of the deed and the suit being against E. L. Gage (the statutes require the record owner to be sued; that was E. L. Gage) dead though he was, makes that deed prima facie proof of ownership. R. S. 1899, sec. 3150. The case of Meriwether v. Love, 167 Mo. 514, has no application to the text which it is sought to support by appellants. (3) Appellants contend that common source of title is only available where there is possession under one who is a common source of title, and cite Cummings v. Powell, 97 Mo. 525. We fail to see any application of the case cited. The possession of the land is not involved. The court gave no writ of possession. The holder of the better title is always entitled to the possession. The right to the possession always follows the paper title. The defendant claimed the land of E. L. Gage under a void judgment, execution and sale for taxes — the whole proceedings being against a dead man. Common source of title is always a good title. Defendant had no title at all and no possession of the land. If a common source is not sufficient, we fail to see any reason why it is good in any action. In ejectment, both the question of title and possession is involved. Bank v. Harrison^ 39 Mo. 433; Holland v. Adair, 55 Mo. 40'; Chouquette v. Barada, 33 Mo. 249 ; Brown v. Brown, 45 Mo. 412. The defendants can not deny E. L. Gage’s title and still claim under it. Bank v. Manard, 51 Mo. 548 ; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Smith v. Lindsey, 89 Mo. 76. Plaintiff has a right to show whatever interest defendant had was derived from the common source of title. This may be shown by parol, as in this case, as well as by records. Grandy v. Carey, 93 Mo. 595; Finch v. Ullman, 105 Mo. 255; Smith v. Lindsey, 89' Mo. 76.
   FOX, J.

This cause is in this court upon an appeal by defendants from a judgment rendered against them by the Washington County Circuit Court. This action was brought under section 650, Revised Statutes 1899; to try, ascertain and define the title of the parties plaintiff and defendant, in and to the land described in the petition. As the sufficiency of the petition is not challenged, we see no necessity for reproducing it here. After the institution of the suit by respondent, Henry C. Bell was made a party and he entered his appearance, and together with his co-defendant Cantwell, they filed a joint answer, alleging Cantwell to be the owner of the land, and followed with a general denial of the allegations of the petition.

Plaintiff offered in evidence the deposition of Anna D. Gage, one of the plaintiffs, who testified that she was the widow of E. L. Gage, and resided in Cincinnati, Ohio, and lived in Cincinnati about nine years, but resided in Texas before that time. That she was the wife of E. L. Gage and for over twenty years they lived together at Alpine, Texas; that E. L. Gage, her husband, was dead; that he died in Chicago in 1892; that there was only one child born to their marriage, a daughter, who is unmarried and living with Anna D. Gage; her name is Harriet A. Gage, and is over eighteen years old; that her husband’s title papers are lost and that she had searched among hers and his papers, which were in her possession, but could not find them; he had his papers scattered from Alpine, Texas, to Chicago, and that she did not know what became of his title papers. She further testified that E. L. Gage owned the land in suit. She further stated that she knew it and knew it all along that he owned the land, and learned a few months ago that it was sold for taxes. She also said that E. L. Gage died intestate. Plaintiffs then introduced a deed from S. D. Cobberly and Catherine E. Cobberly, his wife, by S'. D. Cobberly, her attorney in fact, conveying the land in controversy to E. L. Gage of Alpine, Texas. Then followed the introduction of the record of the tax suit of State ex rel. Collector of Washington County, Missouri, against E. L. Gage, begun May 17, 1894, and the order of publication, and the judgment of the circuit court, and the deed made in pursuance of the sale under such judgment, conveying the land to Henry C. Bell, trustee, and a deed from Henry C. Bell to H. J. Cantwell, the defendant, all of which were recorded. Henry C. Bell was introduced as a witness, substantially testifying that he acquired his title to this land by purchase at the sheriff’s sale under the tax proceeding, as trustee for himself and others. This was all the testimony on the part of the plaintiffs, and defendant introduced none. There were no instructions requested, given or refused, except the one at the close of the plaintiff’s case in the nature of a demurrer to the evidncé, which was by the court overruled.

The cause was submitted to the court and a finding was had for the plaintiffs, and the following judgment was entered of record: “Now at this day this cause coming on for trial upon the pleading and proof, come the plaintiff by attorney and the defendant by attorney, and all matters of law and fact being’ submitted to the court, and the court having heard the argument of counsel and all the evidence doth find for the plaintiffs, Anna D. Gage and Harriett A. Gage, and against the defendants Harry. J. Cantwell and Henry C. Bell. It is therefore, ordered, adjudged and decreed by this court that the fee simple title and the right to the possession in and to the following described land in Washington county, Missouri, is in the said plaintiffs Anna D. Gage and Harriet A. Gage, said lands being described as follows: The east half of the southwest quarter, and lots one and two of the northwest quarter, of section number five, township number thirty-five, range one east, containing two hundred and forty acres of land, more or less, and that the defendants Harry J. Cantwell and H. C. Bell have no right, title or interest in and to said lands or any part thereof, and had not on the 10th day of December, 1901, or at any time since the institution of this suit, and they are hereby debarred from asserting or claiming any right, title or interest hereafter in and to all or any part of said land. It is further adjudged that plaintiff recover of and from the defendants all costs, in this behalf expended, for all of which execution may issue.”

Motions for new trial and in arrest of judgment were filed and by the court overruled, and from the judgment rendered the defendants prosecuted their appeal to this court, and the record is now before us for consideration.

OPINION.

The errors complained of by appellants, as disclosed by the record before us and suggested in the brief of counsel, may thus be briefly stated:

1. That the court erred in finding that E. L. Gage, the grantee in the deed from S. D. Cobberly, was the same E. L. Gage who died in Chicago in 1892, as testified to by Anna D. Gage, his widow.

2. That the testimony as to the title to this land on the part of the plaintiffs was insufficient to authorize and warrant the decree rendered.

3. That under the facts of this case there was no common source of title, and hence it was incumbent upon the plaintiffs to establish their title by proper legal conveyances from its original source.

We are unable to agree with learned counsel for appellant upon any of the contentions urged in this case. Upon the first proposition, we have carefully read in detail the deposition of one of the plaintiffs, Anna D. Gage, and it is clear that her testimony sufficiently identifies the grantee in the Gobberly deed. Her testimony refers to E. L. Gage, her husband; that he resided at one time in Alpine, Texas; and the Cobberly deed recites, “E. L. Gage of Alpine, Texas,” and the identification is emphasized by the additional statement that he owned and claimed the land in suit, and that she had heard some months before that it had been sold for taxes. In the absence of any testimony to the contrary, as to the identification of E. L. Gage, the conclusion is inevitable that the court was fully warranted in finding that E. L. Gage, the husband of Anna D. Gage and the father of Harriet A. Gage, was the grantee in the Cobberly deed.

Upon the second proposition, that the testimony as to the title of the plaintiffs was insufficient to warrant the finding and decree of the court, it is sufficient to say, that from a careful analysis and consideration of the facts developed in this cause, it is apparent that the testimony furnishes ample proof to support the finding and judgment by the court. Taking a practical view of this controversy, it is narrowed down to a very small compass. So far as the testimony discloses, neither plaintiffs nor defendant were in the actual possession of the land in dispute. The only claim of any interest in this land, on the part of defendants, is through E. L. Gage, by the tax proceeding. If E. L. Gage was dead at the time of the institution of that suit, and the rendition of judgment, and the testimony is sufficient to warrant the court in finding that he was dead, then it is not seriously contended on the part of the defendants that they acquired any title by that proceeding. The plaintiffs in this cause claim through E. L. Gage, and introduce proof showing that at the ijhne of the tax proceeding he was dead, and that he died intestate, and that Anna D. Gage and her daughter were the only next of kin surviving him. Following this testimony plaintiffs introduce a deed in due form, from S. D. Cobberly to E. L. Gage, conveying the land in controversy. As between the parties to this action we are of the opinion that this showing was sufficient to authorize the finding and decree of the court. It must not be overlooked that the trial court in this cause, under the provisions of section 650, supra, was simply undertaking to settle a controversy in respect to the title to this land as between these parties. Plaintiffs claim by inheritance, through E. L. Gage, and the defendants claim through E. L. Gage by virtue of sale of his interest in this land, under the judgment in the tax proceeding, and we see no reason or necessity, under the facts of this case, to have required the plaintiffs to introduce their chain of title from the government down to E. L. Gage. The deed from S. D. Cobberly, introduced in evidence by the plaintiffs, established the fact that he was the record owner of this land, and, as was expressly ruled in the case of Graton v. Holliday-Klotz Land & Lumber Co., 189 Mo. 322, this in addition to the other testimony introduced by the plaintiffs, as against the defendants, whose only claim of interest in this land was based upon a sheriff’s deed, without force or vitality, was sufficient to support the finding and decree of the court in favor of the plaintiffs. The case of Graton v. Holliday-Klotz Lumber Company, supra, was a proceeding under this same section, to ascertain and define the title, by the plaintiff, and the essential requisites of the necessary proof in actions seeking relief, under the provisions of that section, are fully discussed. Gantt, J., speaking for the court in that case, after quoting section 650, says: “It is to be observed that by the language of the enactment the controversy is limited to the respective claims of the parties to the action. The statute does not require that the plaintiff shall establish an indefeasible title against the world. The statute does not authorize a proceeding which would make the decree operate as a judgment m rem. By its terms no right or title can be litigated save and except such as may be asserted by the plaintiff and the defendant respectively, and a decree under the statute would not be binding against strangers to the title and party to the suit. This section has often been before this court since its enactment, and the statute has been given a highly remedial and beneficial construction. Its- purpose clearly is to supplement the old equitable remedy of removing cloud upon title and is much more comprehensive in its scope. [Huff v. Land & Improvement Company, 157 Mo. 65; Garrison v. Frazier, 165 Mo. 40; Ball v. Woolfolk, 175 Mo. 278.] Under a similar but more restricted statute than ours, section 3490, II. Comp. Laws of 1857 of Michigan, by which any person having possession may institute a suit against another person setting up a claim thereto in opposition to the title claimed by the complainant and require the defendant to establish his title to such land, it was ruled in Hall v. Kellogg, 16 Mich. l. c. 138, that the complainant was only bound to make out a case as against the defendant, and ‘would not be required to make proof of title beyond that which, when establishing a presumptive case, had not been met by any proofs adequate to shake or destroy it.’ The contention in that case was that the statute required the complainant to establish his title by clear and satisfactory proof. In answer to this contention, the Supreme Court of that State said: ‘If a bill under the statute in question could be filed against all possible parties, so as to make the decree operate as a decree in rem, to quiet the title against all the world, there would be great force in this objection, and it would be necessary to decide what amount of proof would suffice to shut out any adverse propositions or possibilities. But we have already decided in Hunton v. Platt, 11 Mich. 264, that a bill seeking to bring in defendants having distinct and disconnected adverse claims would be multifarious. No claim can be litigated by complainant in this cause, excepting such as may be asserted by the defendant. The decree cannot be binding against strangers to the title and parties to this suit. We can see, therefore, no reason for requiring of the complainant any proof of title beyond that which, when making out a presumptive case against the defendant, has not been met by any proofs adequate to shake or destroy it. And the same doctrine is asserted in Rayner v. Lee, 20 Mich. l. c. 388. In Loomis v. Roberts, 57 Mich. l. c. 288, the same court said: ‘The defendant’s solicitor contends that it was incumbent upon the complainant to substantiate and clearly establish his title as alleged; and he claims that it was indispensable for him to trace his right to the legal title by a continuous chain back to Pettibone, not through the quitclaim deed direct from Pettibone to him, but through the intermediate contract and conveyance alleged.’ But the court held that if the complainant made out a presumptive case against the defendant which had not been met by any proofs adequate to shake or destroy it, it was sufficient under that statute."

It will be observed that the essential features of the Graton case involved the same principles as the case at bar. The Lumber Company in that case asserted title through a void deed emanating from a tax proceeding, purporting to be against the plaintiff. The plaintiff in that case was unable to make any showing of title except a warranty deed, duly recorded in the recorder’s office of the county in which the land was situated. The trial court held that the showing made by plaintiff was insufficient. The judgment of the trial court in that case was reversed; and in announcing the conclusions reached by this court, it was said: “It is sufficient even in ejectment to show that both plaintiff and defendant claim under the common source of title. It seems to us that we violate no rule of justice, in the circumstances of this case, in applying that doctrine to the facts before us, and in holding that as against the defendant, whose only assertion of title is a void deed purporting to convey the plaintiff’s interest, it was sufficient to show that plaintiff was claiming the land under a warranty deed duly recorded, and that defendant’s only title thereto was the void sheriff’s deed above noted. We are strengthened in this view by the further consideration that the State, through its lawmaking power, deems it sufficient in the enforcement of its taxes to make the last record owner the defendant in these tax suits, and, if the recording of plaintiff’s deed is deemed sufficient evidence of title to justify the taking of the property when these tax proceedings are regular, we can see no reason why the same evidence of title will not suffice, as between such record owner and one who claims his title under the record owner, when the proceedings are void.”

This case must be held as decisive of the contention of the defendants, that in order to warrant the decree of title in this case it was necessary to establish a chain of title from its original source. This judgment and decree does not affect anyone except the parties to the suit, and as between the parties to this proceeding, we see no escape from the conclusion that the decree and judgment was proper.

Finding no reversible error disclosed by the record, this judgment should be affirmed, and it is so ordered.

All concur.