text:
    THE STATE ex rel. JULIUS HALLER v. GLENDY B. ARNOLD et al., Members of Board of Election Commissioners of St. Louis, and HENRY C. MENNE, City Treasure.
    In Banc,
    March 21, 1919.
    1. ELECTION: Nomination: Receipt of Statutory Fee. Section 6015, Laws' 1913, p. 337, does not require, as a condition precedent to the placing, by the Board of Election Commissioners of the City of St. Louis, of the name of a proposed non-partisan candidate on the official ballot, that the receipt of the City Treasurer for the deposit of the fee fixed by said statute shall be- filed along and contemporaneously with the certificate of nomination of the candidate. A statutory requirement of a contemporaneous filing of the receipt, without exception, would be so narrow and would so restrict and circumscribe the right of a citizen to be a candidate as to be unconstitutional, as an impingement upon the constitutional guaranty that “all elections shall be free and open:’’
    2. -: -: - — : Treasurer’s Absence From Office. Since an eligible candidate for office is entitled to the whole of the last day allowed by law within which to file his certificate of nomination, and since the payment of the filing fee can be made only to the City Treasurer and his receipt is made the sole evidence of the payment, a non-partisan candidate for an office ought not to be deprived of his right to have his name printed on the official ballot by the adventitious absence of the Treasurer from his office or the city, if his certificate of nomination in proper form is presented to the Board of Election Commissioners in due time and he is otherwise without fault.
    Mandamus.
    Writ issued.

      Taylor B. Young and T. T. Hinde for petitioner.

      Frank W. McAllister, Attorney-General, and S. E. Shelley, Assistant Attorney-General, for respondents.
   FARIS, J.

This is an original proceeding by mandamus whereby it is sought to compel respondents Arnold, Bnder, Lammert and Dempsey, who compose the Board of Election Commissioners of the City of St. Lonis, to place and canse to be printed the name of petitioner, Jnlins Haller, on the official ballot of an election to be held in said City of St. Lonis on the first day of April, 1919, as-a non-partisan candidate for the office of President of the Board of Aldermen of said city, and to compel respondent Menne, who is the Treasurer of the City of St. Lonis, to receive and receipt for the deposit fee of sixty dollars, which is required by law to be paid by all candidates for said office.

It is stipulated by counsel for petitioner, and by the Attorney-General of Missouri as counsel for all of the respondents, that the issuance of our alternative writ of mandamus shall be regarded as waived; that the petition herein shall stand as and for the alternative writ of mandamus, and that the case shall be submitted for the immediate judgment of this court upon a general demurrer to the petition, standing as and for such alternative writ.. The case in therefore at issue upon a cold question of law, which question' is to be resolved by the application of the ruling statutes and law to the agreed facts as the petition recites these facts.

The petition is therefore pertinent. It reads, omitting merely formal parts, as follows:

“Your petitioner, Julius Haller, states that he is and has been for many years last past, a resident and registered voter and elector of and in the City of St. Louis, State of Missouri, a city having more than 4000,000 inhabitants and having among other office?? the elective office of President of the Board of Aider-men, and that as such resident and elector, petitioner is eligible to said office of President of the Board of Aider-men; that said city has a Board of Election Commissioners consisting of four members, the present members being and were on the 17th day of March, 1919, 1, 2, .3, 4, four of the above-named respondents, having such official duties as is by law provided; that said city also Pas the office of said Treasurer and that the respondent 5 is now and was on the 17th day of March, 1919, the said Treasurer of said city.
“That said city has in pursuance of law in such case made and provided, called and caused to he given notice of an election to be held- in and for said city on the first day of April, 1919, at which said election there are to be elected officers to fill the several city offices, including the office of President of the Board of Aldermen of said city.
“That petitioner, desiring to become a candidate for said office of President of the Board of Aldermen of said city and to have his name appear on the official ballot as a non-partisan candidate therefor., prior to March 17th circulated and procured the signatures of registered electors of said city to a nomination petition or certificate of nomination, being in words and figures as follows:
“To the Honorable
THE BOARD OP ELECTION COMMISSIONERS OP THE CITY OP SAINT LOUIS, MISSOURI.
We, the undersigned registered electors residing within the City of Saint Louis, Missouri, being bona-fide supporters of, and not having aided, and who will not aid, in the nomination of any other candidate for the office hereinafter mentioned, do hereby nominate Honorable Julius Haller as nonpartisan candidate for the office of President of the Board of Aldermen of the City of Saint Louis, Missouri, at the election to be held April 1, 1919.
Signature Residence If signer has moved since registering state where he registered from Ward Prec.
‘ ‘ That said petition or certificate . was in fact signed by 3412 registered electors, residing in said city, being a number in excess of two per cent of the entire votes cast for mayor at the last preceding election of said city for that office.
“That thereafter, on the 17th day of March, 1919, petitioner in compliance with the provisions of Section 6015, Revised Statutes 1909, as amended by the Laws of 1913, called at the office of respondent, City Treasurer as aforesaid, for the purpose of paying in the sum of sixty dollars and taking his receipt therefor, to he thereafter filed with said election commissioners, hut was then unable to find said treasurer at his office or elsewhere; said sum of sixty dollars being equal to two per cent of the salary for one year of said office of President of the Board of Aldermen of said city, for which petitioner is the candidate.
“That thereafter, on the 17th day of March, 19.19, being the last day for filing certificates of nomination, petitioner presented to and filed with said Board of Election Commissioners his said certificate of nomh nation, signed as aforesaid, which was and is now retained by said board, but by its voting action said board has officially ruled and declared that said filing is not. in compliance with the law and for the sole reason that the receipt of said treasurer for a deposit with him of said filing fee was not filed with said board, together with said certificate of nomination filed as aforesaid, and for that reason said board' informed petitioner that his name would not appear on the official ballot to be voted at said election.
“That thereafter, on the 18th day of March, 1919, petitioner found said treasurer -and tendered to him said filing fee in the sum of sixty dollars and demanded that said treasurer receive and receipt for the same, that petitioner might be thus enabled to file said receipt with said Board of Election Commissioners, but this the said treasurer declined and refused to do, then stating to petitioner he was advised by the city counselor of said city not to accept or receipt for said fee; but said treasurer did on that date give petitioner a written statement over his signature showing that petitioner had made the tender and demanded a receipt therefor as above stated.
“That thereafter, on the 18th day of March, 1919, petitioner filed said written statement of said treasurer with said Board of Election Commissioners and again requested and demanded that his name he by said board orderéd printed on the official ballot to he voted at said election as a non-partisan candidate for the office of President of the Board of Aldermen of said city, hut this the said board again refused and yet refuses to do and will not' do unless so ordered by the court.
“Petitioner further avers that by a proper construction of the language of the provisions of the laws of the' State of Missouri governing such nominations it was not made obligatory upon him to pay said filing fee and file said treasurer’s receipt therefor with said Board of Election Commissioners thereafter and at the time of filing his said certificate of nomination, as aforesaid; that the filing of such receipt at the time of filing his certificate of nomination is not by law made a prerequisite to entitle petitioner to have his name printed on the official ballot; that if by a proper construction of the language of the statute it can be said the receipt is required to be filed with the certificate of nomination, such provision must he held to he only directory and not mandatory.
“Petitioner further avers that if, as claimed and contended for by respondents, Section 6015, Revised Statutes 1909, as amended by Laws 1913, p. 335, requires petitioner to pay said filing fee before filing his certificate of nomination, then said section is unconstitutional and void as being in conflict with Section 9, Article 2, of the State Constitution, providing that ‘all elections shall he free and open;’ and petitioner hereby expressly raises this constitutional question and asks the court to pass on the same in considering this petition.
“Petitioner further avers that respondents, and each of them, have refused, and yet refuse, to perform their respective official duties in the premises, as hereinabove alleged; that the matter' herein involved is not only of personal interest to petitioner, but is also of vital public interest to tbe citizens of tbe city and State at large; that because of this, and the exigencies of the matter, this court ought to entertain and determine this cause speedily, and to that end should suspend its Rule No. 33 as to the five-day notice therein provided.
“Wherefore, your petitioner, being wholly without other adequate remedy, prays the issuance by this court of a writ of mandamus directing said Board of Election Commissioners, and each member thereof, to place the name of petitioner on the official ballot to be voted at said election as a non-partisan candidate for said office of President of the Board of Aldermen of said city; that, if by the court deemed necessary to the rights of petitioner in the premises, the respondent, Henry C. Menne, as Treasurer aforesaid, be directed to accept and receipt for said sixty-dollar filing fee, which petitioner stands willing and ready to pay under the direction of the court; and petitioner prays for such other and further relief to which by reason of the premises he may be entitled.”

Upon the above facts how stands the law? It is obvious that the sole point presented involves the single question of the meaning, when applied to the agreed facts, of Section 6015 of the Act of February 24, 1913, Laws 1913, pp. 337-338, repealing an act which amended Article 11 of Chapter 43, Revised Statutes 1909, and enacted divers new sections in lieu thereof. This section reads thus:

“Any person or persons filing certificates signed by electors for ‘non-partisan candidates’ as provided in Section 6014a of this act shall pay the same sum of money required by this act to be paid by any candidate of a political party for the office for which he proposes, to the city treasurer, take a receipt therefor and file said receipt with his certificate of nomination; said sum of money so paid shall go into the general revenue fund of the city.” [Sec. 6015, Laws 1913, pp. 337-338.]

The sole question at issue may he stated in yet a narrower compass. That question is: Does Section 6015 of the act supra, above quoted, absolutely require as a condition precedent to the placing by the Board of Election Commissioners of the name of a-proposed non-partisan candidate on the official ballot, that the receipt of the City Treasurer for the deposit of the sum of sixty dollars shall be filed along with, and contemporaneously with the certificate of nomination of such proposed candidate?

We have concluded that is does not. The affirmative of the question stated and presented by the facts here' at issue would in our opinion and in the light of the language of the above section be too narrow a view to take of the meaning of that section. Such a view would inevitably restrict and circumscribe the right of a citizen to be a candidate for office within such limits and hedge the privilege about with such conditions as materially to impinge upon the guarantee of the Constitution that “all elections shall be free and open” [Section- 9, Article 2, Constitution 1875.] It will be noted that the statute uses the word “with” only, without qualifying this word by the word “contemporaneously” or other similar word connoting, or importing, simultaneity of filing of both the receipt for the deposit and the certificate of nomination. Clearly, the language used imports and requires the filing of this receipt at the same place and with the same officer with whom such certificate of nomination is filed. We may go further and concede that it requires, no compelling reason or valid- excuse to the contrary existing, the filing of the receipt contemporaneously with the filing of the certificate of nomination; but as forecast the application of such latter iron-bound rule in all cases would so far work a hardship and a denial of free and open elections as to.impinge upon constitutional rights. A brief reference to the agreed facts illustrates this: Here, petitioner endeavored to pay the required deposit fee of sixty dollars to the proper officer, that is to say, to respondent Menne as Treasurer- of the City of St. Louis, on the last day allowed to him by the letter of the law within which to make such payment, and likewise endeavored to obtain from such Treasurer the required receipt therefor. But petitioner was unable to make such payment on that specific day, solely because he was unable to find either in his office or elsewhere about the city, the only officer to whom by law such payment could be made. It will be observed that this payment can be made, perforce the statute under discussion, only to the Treasurer of the City of St. Louis in person, and that the receipt of this officer-is made the sole evidence of the payment of such deposit. Pursuing the facts further, it will be observed that on the day following the last day on which the letter of the applicatory statute permitted the filing of certificates Gf nomination, the petitioner made a tender of the required deposit fee to the respondent Menne as City Treasurer and requested from the latter the proper receipt therefor, which request was refused solely because such tender was by respondent Menne deemed to be out of time.

It .is manifest that any eligible candidate for office is entitled to the whole of the last day allowed by law within which to submit himself to the electors for their suffrages. In a cáse like this, where the proposed candidate is in no wise at fault (the argument that he should have made, up his mind earlier obviously having no weight, by reason of the truth of the premise last above) ought he to be deprived of the privilege of running for a public office by the mere adventitious fact of the absence from his office, or from the city, or from the state, of the only officer from whom the required official receipt can under the letter of the law be obtained? The Treasurer might be ill, or a case can be imagined where the death of the Treasurer might occur on the last day for filing prescribed by the letter of the statute, and wherein it would be impossible to appoint his successor in time to have such successor accept the required deposit and issue the required receipt therefor.

In such case, the untrammeled constitutional privilege of all eligible persons to become candidates for office requires us — if we are to escape holding this statute invalid for that it contravenes the spirit and the letter of the Constitution in denying this privilege — to say that if the proposal candidate be in no wise in default, and the death of the Treasurer, or the latter’s illness, or his absence from his office, from the city, or from the State, shall prevent the making of the required deposit and the obtention of the required receipt on the day prescribed by the letter of the statute, all that should be required is the earliest possible payment and obtention and filing thereafter of such receipt; provided, such filing of the receipt shall he in time to allow of the performance by the. Board of Election Comissioners of the very first of the ensuing duties incumbent upon them by law. The fair, just and equitable' construction by this-court of the election laws and machinery of this State in the analagous cases of Nance v. Kearbey, 251 Mo. 374, and State ex rel. v. Seibel, 262 Mo. 220, ruled by this court in opinions by Lamm, C. J., requires such a construction of this statute at our hands. The demurrer should be overruled.

It follows that the contention of petitioner should be sustained, and our peremptory writ of mandamus should issue as prayed. Let this be done.

Bond, C. J., Walker, Blair and Woodson, JJ., concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    EFFIE NICHOLS et al. v. LOUIS ROBINSON, Appellant.
    Division One,
    March 28, 1919.
    1. LAWS: When Effective: Under Constitution of 1865. Under the Constitution of 1865 an act passed in March of the year 1875 and reciting that “this act shall take effect and be in force from and after its passage” took effect upon its approval by the Governor; and the recital was not unconstitutional because thg act was signed on the day it was presented to him.
    2. -:-: In Ninety Days: Different Date Mentioned in Act. A section in the General Statutes of 1865 declaring that “all acts of the General Assembly shall take effect at the end of ninety days after the passage thereof unless a different time is therein appointed” did not nullify a section of the Homestead Act of 1875 declaring that “this act shall take effect and be in force from and after its passage.” The section appointed a different time in which the act was to take effect, namely, upon its approval by the Governor, who had authority to sign it on the same day it was presented to him.
    3. HOMESTEAD: Widow’s Tee After Passage of Act of 1875. The Homestead Act of 1875 became effective on its approval by the Governor on March 18th, 1875, and consequently a widow, whose husband died on May 5th, 1875, did not take a fee in the homestead, but only such interest as was given her by the Act of 1875, which reduced the widow’s pre-existing fee to a life estate.
    4. WILL: Probate: Necessary Showing. A showing that proof of the subscribing witnesses was taken by the clerk, that the will on that date was admitted to record, that letters testamentary were later granted to the persons named as executors, that it was later “ordered by the court that the bond taken and the letters testamentary granted by the clerk of this court in vacation be and the same are hereby approved,” and that the estate was fully administered and the executors discharged as shown by the records, are sufficient proof that the will was duly probated under the laws in force, in 1875, and that consequently testator’s son, to whose wife and the' heirs of her body the will gave the lands in suit, did not take by descent.
    Appeal from Cape Girardeau Circuit Court. — Hon. Franh Kelly, Judge.
    Affirmed.

      Wilson Cramer for appellant.
    (1) Lots 10,11 and 14, comprising 108 acres, valued at the time at $5 per acre, constituted the homestead of Martin Asher. At his death on May 5, 1875, it passed in fee to his widow, Sarah Asher, and was not subject to devise. (2) The Act of March, 1875, by which •the widow’s interest in the homestead was reduced to a life estate,' did not go into effect until June, 16, 1875, or ninety days after its passage, although it contains the following provision: “Sec. 3. This act shall take effect and he in force from and after its passage.” This section is unconstitutional and contrary to the G-eneral Statute relating to the taking effect of acts of the General Assembly. Constitution 1865, art. 5, sec. 9; G. S. 1865, p. 76', sec. 4; Ex parte Lucas, 160’ Mo. 218; Charless & Blow v. Lamberson, 1 Iowa, 435. Under the Constitution the General Assembly had no power to provide that an act should take effect and be in force from and after its passage. To hold otherwise is to ignore the mandatory provision requiring that a bill shall be presented to the Governor for his approbation before it becomes a law. Const., Art. 4, Sec. 38; Art. 5, Sec. 9. The Constitution of 1865, simply says: “Every bill which shall have been passed by both houses, of the General Assembly, before it becomes a law, ' shall be presented to the governor for his approbation,” and .allows him ten days (Sunday excepted) for its consideration. It does not make it the duty of any one to present the bill to the Governor, nor fix the time when it shall be done. A bill may therefore be submitted to the Governor on the day it was passed, or at any other time during the sitting of the General Assembly, but in no event can become a law until it has been so presented. How, then, can it constitutionally be provided that a .bill shall take effect from its passage? (3) Since the Act of March 18, 1875,' amending the homestead law, did not go into effect till June 16, 1875, after the death of Martin Asher, the homestead vested by operation of law in his widow, Sarah Asher, in fee, and by her deed of Novémber 29, 1878, was transferred to Elizabeth Asher and A. P. Asher, who conveyed by deed of May 3, 1881, lots 10 and 11 to William Stringer, from whom defendant obtained title by deed dated May 26, 1891.(4) The court below erred in receiving in evidence, over the objections of defendant, the paper purporting to be the last will of Martin Asher, deceased. A certificate of probate was granted by the clerk in vacation, but, unlike the cases in which this court has indulged the presumption that the act of the clerk had been confirmed by the court, the evidence in this case is direct and undisputed that there never was an order of court confirming the act of the clerk in vacation, or admitting the will to probate. Nor can any weight be attached in this case to the fact of recording. The will was filed June 29, 1875, probated by the clerk July 3, and recorded within two days afterwards, on July 5, 1875. The court met in regular session on July 26, 1875. The only acts shown , by the evidence to have been done by the court are the approval of the act of the clerk in vacation in granting letters and taking bond, and the approval of the settlements made by the executors. If this is confirmation of the probate of the will by the clerk in vacation the statute is meaningless. This court has decided time and again that a will not probated is ineffectual to pass title and is not admissible in evidence. Parris v. Burchard, 242 Mo. 1; Snuffer v. Howerton, 124 Mo. 637.

      L. M. Henson and Mosley & Woody for respondents.
    (1) The statute cutting down the widow’s homestead right from an estate in fee to a life estate took effect and became operative on the 18th day of March, 1875, prior to the death of Martin Asher. This being true, his widow took a life estate and not the fee, and her deed passed only such estate, which estate terminated at the date of tier death, in 1913. Laws 1875, p. 60; G-. S.186'5, ch. 5, sec. 4, p. 76; Neff v.. McGuire, 52 Mo. 493; Swan v. Buck,- 46 Miss. 269; Poole v. Brown, 98 Mo. 680; Poland v. Yesper, 67 Mo. 727; Ailey y. Burnett, 134 Mo. 313; Burgess v. Bowles, 99 Mo. 543; Davidson v. Davis, 86 Mo. 440 ; Bushnell v. Loomis, 234 Mo. 371. (2) The will was presented to the clerk of the county court on the 29th day of June, 1875. The proof of David Duffy and Isom Keith, subscribing witnesses, was taken. That off the remaining subscribing witness, Stephen Chapman, was taken on the 2nd day of July, 1875, before a commissioner of Butler County. On July 3, 1875, the will was admitted to probate by the clerk of the county court and the will itself was recorded in the office of said clerk in a book kept for that purpose. On August 3, 1875', in vacation, letters testamentary were granted to the executors named in the will. This act of the clerk was afterwards approved by the court in term time. The estate was administered under the provisions of the will. All of the debts of the testator were paid, all of the legacies provided in the will were paid, and in 1878 the executors were discharged. The act of the clerk in admitting the will to probate was, by the above orders made in said estate, confirmed by the court. 16 Enc. PI. & Pr. .1043; 40 Cyc. 1343; In re Will of Warfield, 22 Cal. 51, 83 Am. Dec. 49; Holliday v. Ward, 19 Pa. St. 483, 57 Am. Dec. 671; Jourden v. Meier, 31 Mo. 40; Creasy v. Alvison, 43 Mo. 13, 1. c. 20; Rothwell v. Jamison, 147 Mo. 601; Hartwell v. Parks, 240 Mo. 527; Lackland v. Stephenson, 54 Mo. 108; Farris v. Burchard, 262 Mo. 334; Macy v. Stark, 116 Mo. 481. (3) The county court of Stoddard County had exclusive jurisdiction of the probate of wills and the administration of estates under the provisions thereof. It obtained jurisdiction of this particular will and the estate of Martin Asher by reason of the filing of his will in the office of the clerk. This court administered the estate through the executors nominated in the will, paid the debts and legacies, approved the final settlement and discharged the executor. Every presumption will he indulged that the court confirmed the will and in the absence of some fact, recital- or statement contained in .the records of the court with reference to this estate which shows affirmatively that the will was rejected,, the above presumption becomes conclusive. Bingham v. Kollman, 256 Mo. 589; Sldllman v. Clardy, 256 Mo. 297; Hartwell v. Parks, 240 Mo. 537; Chlanda v. Transit Co., 213 Mo. 260; Macy v. Stark, ll6 Mo. 481; Carey v. West, 139 Mo. 136; Parris v. Burchard, 262 Mo. 334. (4) Practically forty years had elapsed since this will was probated and the estate administered under its provisions. While the estate was in the probate court, all the parties acted on the presumption that the will was properly probated. It is now too late for either of the interested parties or their grantees to question the probate of this will. Chap. 145, R. S. 1879, secs. 29 and 31; .Jourden v. Meier, 31 Mo. 40; Lackland v. Stephenson, 54 Mo. 108; Stowe v. Stowe, 140 Mo. 594; Hans v. Holler, 165 Mo. 47.
   GRAVES, J.

The petition in this case contains two counts, (1) one to quiet title and (2) one 'in ejectment. Each is conventional in form.

To the first count of the petition the defendant answered (1) by admitting his possession and admitting his claim of title, and averring that he held the record title from the patentee down and a general denial of other matters, and (2) the ten-year Statute of Limitations is invoked. To the second count he answered (1) by admitting his possession, claiming ownership, and denying other matters, and (2) a plea of the ten-year Statute of Limitations, and (3) a plea of the 24-year Statute of Limitations.

Reply was a general denial. Judgment for plaintiffs and defendant has appealed.

The facts of this case are simple and to the point. The land involved is conceded to be a part of the homestead of one Martin Asher, who is the common source of title. Martin Asher died testate on May 5, 1875. At this point dates are material. He left as his widow, Sarah Asher and a son, A. P. Asher. The fourth and fifth clauses of the will read:

“Fourth: I give- and devise to Elizabeth Asher, wife of my son Arthur P. Asher, and the heirs of her body, all of my real and personal estate, after all my just debts, liabilities and the legacies herein provided for are paid off and satisfied that shall then be remaining and not herein disposed and to their heirs.
“Fifth: It is not intended herein to interfere with my wife’s personal dower.”

The due probate of this will is denied and this becomes a question for decision.

Using the language of appellant’s counsel:

“The residuary devisee, Elizabeth Asher, wife of Arthur P. Asher, had three children, one of whom died in early infancy, and two who were living at the time of their grand-father’s death, namely, Thomas Asher and Rachel Asher.
“Thomas Asher survived his father A. P. Asher and died, unmarried and without issue, leaving his mother Elizabeth and his sister Rachel surviving. Elizabeth Asher died October 12th, 1912. Rachel Asher married Haywood Cook, by whom she had three children, Effie, Woody and Haywood Cook, who are the plaintiffs in this suit.”

Learned counsel for appellant further outlines his claim thus:

“Defendant claims under Sarah Asher, the widow of Martin Asher, on the theory that she took the homestead in fee, and under A. P. Asher, the son of Martin Asher, if the widow took a life estate only, because the will of Martin Asher was not probated and therefore ineffectual to pass title and A. P. Asher took by descent from his father.
‘ ‘ Sarah Asher, the widow of Martin Asher, married Edward Shipman on the 29th day of August, 1875, and after his death was married to Joseph A. Morris on January 8, 1877. On the 29th day .of November, 1878, by the name of Sarah Morris, she and her husband executed a deed to Elizabeth Asher and A. P. Asher, conveying lots 10, 11 and 14 of section 5, township 25, range 8, the identity of the grantors being established by the following recital in the deed:
“ ‘This indenture made on the 29th day of November, A. D. one thousand, eight hundred and seventy-eight, by and between Sallie Morris, late Sallie Ship-man, late Sallie Asher; and Joseph Morris, her husband, of the County of Stoddard and State of Missouri, parties of the first part, and Elizabeth Asher and A. P. Asher of the County of Butler and State of Missouri, witne,sseth, etc.’
“Elizabeth Asher and A. P. Asher, her husband, transferred lots 10 and 11 to Williám Stringer by warranty deed dated May 3, 1881, and William Stringer conveyed the same by warranty deed, dated May 26, 1891, to the defendant, Louis Robinson, who has ever since claimed title and held possession.
“Memoranda of conveyances:
“Sarah Morris and husband, quit claim, to Elizabeth Asher and A. T. Asher, lots 10, 11 and 14, Nov. 29, 1878.
“Elizabeth Asher and A. P. Asher, warranty, to William Stringer lots 10 and 11, May 3, 1881.
“William Stringer, warranty, to Louis Robinson, May 26, 1891.”

Counsel for respondents concisely state their case thus:

“Martin Asher left surviving him a widow, Sallie (or Sarah) Asher, who afterwards married a Ship-man and then a Morris, and Arthur P. Asher, a son. Item 4 of his will, provides as follows:
“ ‘Fourth: I give and devise to Elizabeth Asher, wife of my son, Arthur P. Asher, and the heirs o.f her body, all of my real and personal estate, after all my debts, liabilities and the legacies herein provided for are paid off and satisfied that shall then be remaining and not herein disposed of, and to their heirs.’
“Elizabeth Asher had three children, Thomas and Rachel, and one child that died in infancy. Thomas died when he was about twenty years old and left no children. Rachel Asher married Haywood Cook. She died September 20, 1911, leaving plaintiffs as her only heirs, they being the grandchildren of Elizabeth Asher. Elizabeth Asher died October 12, 1912, and Sallie Asher, the widow, died in the year 1913.
“Plaintiffs claim title to the land in controversy as residuary legates under the will of Martin Asher. Defendant claims by mesne conveyance from A. P. Asher, the only heir of Martin Asher.
“Defendant contends that the judgment rendered by the circuit court in this cause, should be reversed for the following reasons:
“1. That the lands in controversy constituted the homestead of Martin Asher, and passed to his widow in fee, under the Homestead Act of 1865, which title he acquired by mesne conveyances.
“2. That the will of Martin Asher was not legally probated and hence did not convey the title to these lands, but that the same passed to A. P. Asher, as the only heir of Martin Asher, and that defendant has his title.’’

From the foregoing can be gathered the real issues. In the brief of appellant we find nothing upon the Statutes of Limitation, and he evidently abandons those defenses.

I. The counsel for respondent, as quoted in the statement above, have pointedly stated the two contentions of the defendant. The defense of the Statute of Limitations dropped from the case and is not even urged or briefed here. There is no question Sarah Asher, the widow of Martin Asher, in fact and law acquired a fee to this land by virtue of the Homestead Act of 1865, the defendant has acquired this title. Further, if the widow aforesaid, did not get the fee, hut only a life estate, and the will of Martin Asher was not duly probated, then the fee passed from A. P. Asher to this defendant. A. P. Asher was the only child of Martin Asher, and absent a will, he would take by descent. The defendant puts all his eggs in the two baskets. In effect he conceded that plaintiffs are entitled to recover, unless under one or the other of the two theories he acquired title. The two theories are (1) that the widow became possessed of a fee estate in this homestead upon the death of Martin Asher and defendant has her title; (2) that although he did not get the fee in this manner, yet Martin Asher’s will was never duly probated, and A. P. Asher was the only heir, and defendant procured both his title and the title of the widow, whatever it was. If defendant is right in either of these contentions he has standing in the case; otherwise he, in his brief, claims none. The questions we take in order.

II. The contention is that the Act of March, 1875, (Session Laws 1875, p. 60), by which the widow’s interest in the homestead was reduced from a fee to a life estate, did not go into effect until June 16, 1875, or ninety days after its passage. This in face of the fact that Section 3 of the act reads':

“This act shall take effect and be in force from and after its passage.”

Appellant contends that this section is unconstitutional, and contrary to the general statute relating to the time at which bills should become laws. The Constitution of 1875 was not effective when this Act of 1875 was passed. The act was approved by Governor C. H. Hardin on March 18, 1875. Prom the Senate Journal (the bill originated there) it appears that on March 18th the committee on Enrolled Bills- reported that they had examined and found correctly enrolled Senate Bill 52 (the law involved here), “and had presented the same to Ms Excellency, the- Governor for Ms consideration.” [Senate Journal of 1875, p. 491.] On the same day by the same record (Senate Journal of 1875, p. 488) it is shown by the message of the Governor, therein and thereat incorporated, that he had approved the said bill. The bill as approved contained said Section 3 aforesaid.

In Article V, Sec. 9, Constitution of 1865 (under which this new law was passed), it is provided:

“Every bill which shall have been passed by both houses of the General Assembly, before it becomes a law, shall be presented to the Governor, for his approbation. If he approve, he shall sign it; if not, he shall return it, with his objections, to the house in which it shall have originated; and the house shall cause the objections to be entered at large on it' journals, and shall proceed to reconsider the bill. After such reconsideration, if a majority of all the members elected to that house shall agree to pass the same, it shall be sent, together with the objections, to the other house, by which it shall, in like manner, be reconsidered; and if approved by a majority of all the members elected to that house, it shall become a law. In all such cases the votes of both houses shall be taken by yeas and nays, and the names of the members voting for and against the bill shall be entered on the journals of each house, respectively. If any .bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall become a law, in like manner as if the Governor had signed it, unless the General Assembly, by its adjournment, shall prevent its return; in which case it shall not become a law, unless the Governor, after such adjournment, and within ten days after the bill was presented to him (Sundays excepted), shall sign and deposit the same in the office of the Secretary of State; in which case it shall become a law, in like manner as if.it had been signed by him during the session of the General Assembly.”

Here we have the record showing the presentation of the hill and the report of the Governor to the effect that he had signed it, and farther the records of the Secretary of State’s office showing the original signed bill. All are to one effect.

The point urged is, as I gather it from the brief, that the Governor did not have to sign a bill on the day of its passage, and hence the section reading, “This act shall take effect and be in force from and after its passage,” is anconstitational. Counsel also suggest that Section 4, page 76, of General Statutes of 1865, is effective here. This section reads: “All acts' of the General Assembly shall take effect at the end of ninety days after the passage thereof unless a different time is therein appointed.”

The legislative authority in Missouri is not wholly with the General Assembly. The Governor is a factor in legislation. When the General Assembly used the clause “after its passage” as it did in Section 3 of the act, it meant after the signature and approval of the Governor, or in the event he vetoed it, the final passage over his veto, as provided in the Constitution. It would be far-fetched to say that the legislative .body meant that the law should becoine effective without the presentation to the Governor. We can see no merit in this contention. To hold that this clause in this act violated the Constitution would be to invalidate a great many like sections of laws in this State. Nor is there substance in the contention that it violated the general laws then existing for fixing a date upon which signed bills should become laws. The general law, quoted supra, simply provides that such signed bills shall become effective' laws within ninety days after their passage “unless a different time is therein appointed.” This act did appoint a different time. The exact time became fixed, when the Governor on March 18th signed the bill. The bill had then fully succeeded in its passage over the Legislative course. We hold therefore that the Act of 1875 became an effective law on March. 18, 1875, and that the widow in this case did not take the fee in the homestead. Snch seems to he the trend of our holdings. Thus in Poland v. Vesper, 67 Mo. 727, we held that the homestead could he sold for debts, subject to the homestead rights. Vesper died March. 25, 1875, or just seven days after the Governor signed the Act nf 1875 on March 18th of that year. We could not have so held, without holding that the Act of 1875 became effective prior to Vesper’s death on March 25th. Because if it was not effective Vesper’s widow had the fee, and there was nothing to sell. This ruling was consistently followed, until we later changed the homestead law.

The defendant therefore could not have acquired more than a life estate through the deed of the widow. This life estate had fallen in prior to this suit by the death of the widow.

III. The will of Martin Asher was presented to the clerk of the county court on 29th day of June, 1875. Proof of the subscribing witnesses was taken, the concluding part being on July 3, 1875. The will was 011 date admitted to record by the clerk of the’ court, and letters testamentary granted to Joel Hobbs and Lawson A. Taylor, the executors named in the will, on August 3, 1875. The estate was fully administered under the term of the will, all debts and legacies paid under the terms, of the will, and the executors discharged in 1878. The contention is that there is no formal order admitting the will to probate.

The record of the court does show the following:

<£ Estate -of Martin Asher, Dee’d.
“Ordered by the court that the bond taken and the letters testamentary granted to Joel Hobbs and Lawson A. Taylor, by the clerk of this court in vacation, be and the same are hereby approved.”

Then, as above said, the court records do show the settlements and other estate matters, until the close of the estate. This sufficiently shows the probate of the will. With its probate, the alleged interest of A. -P. Asher drops out. So that the defendant acquired no interest by the deeds to him, save and except the life interest of the widow, which fell out upon her death:

No other matters appearing on this record, it follows, that the judgment nisi was correct, and should be affirmed.

All concur; Bond, J., in paragraph 3 and in the result.


author: WILLIAMS, J.

text:
    THE STATE v. JOHN J. MASTIN, Appellant.
    Division Two,
    March 28, 1919.
    1. FALSE PRETENSE: Information. The information, set out in the statement, charging that defendant, by falsely representing himself to he in the employ of the United States at one dollar a year and by mating public speeches and soliciting funds for the relief of war sufferers, fraudulently obtained twenty-five cents from a named auditor, is held to sufficiently charge the offense denounced by Section 4765, Revised Statutes 1909, as amended by Laws 1913, page 222.
    2. OPENING- STATEMENT: Preservation for Review. Unless reference is made in the motion for a new trial to the action of the trial court in overruling objections to the opening statement of the prosecuting attorney, the rulings cannot be reviewed on appeal.
    3. DEPENDANT AS WITNESS: Cross-Examination. The cross-examination of defendant, by questioning him concerning matters to which he made no reference in his direct testimony, though technically a violation of the well-known rule, is not prejudicial error, if it pertains to immaterial matters and is of such a nature as not to prejudice the jury against him.
    4. EVIDENCE: Other offenses: No Objection. The admission of testimony that defendant, charged with obtaining money by false pretense by making public speeches in which he declared himself an authorized employee of the Government to solicit money for war sufferers, made the same speech at other places and that persons hearing him,, relied upon his representations and made small contributions, if admitted without objection, cannot be considered on' appeal. •' ..

      5. ARGUMENT TO JURY: Preservation for Review.’ Remarks made by tbe prosecuting attorney in his closing argument to the jury, alleged to be improper, if not preserved in the bill of exceptions, cannot be reviewed on appeal. A mere statement in the motion for a new trial that certain remarks were made is not proof that they were made.
    6. INSTRUCTIONS: On Acquittal Count. Instructions upon issues involved in the count of the information upon which there was an acquittal cannot on appeal be held to be erroneous or to call for a ruling.
    7. -: Refusal. To refuse instructions which correctly state law is not error if the issues and principles contained in them „ * covered by others given.
    8. -: False Pretense: Omission of Word Cheat. If the instruction required the jury to find that defendant acted with the “intent of defrauding” the prosecuting witness, the omission therefrom of the word “to cheat” or “cheating” is not reversible error, although the statute requires that the intent must be to “cheat and defraud.” The two words are synonyms, and the meaning conveyed by the word “cheat” is included in the word “defraud.”
    9. -: -: Intent to Keep Money: Broader Than Charge. The statute only requires that the defendant, by the means in it enumerated, “with intent to cheat and defraud, shall obtain from any person, any money;” it does not require that the jury find that he intended to keep the money thus obtained. Hence, an instruction which, after requiring the jury to find that defendant with intent to cheat and defraud obtained money from the prosecuting witness, told them that if they found he “did not intend to keep the money as his own to do with as he pleased” they would find him not guilty, was broader than the information, but it was an error in his behalf, and imposed on the State an additional burden, of which he cannot complain.
    Appeal from Montgomery Circuit Court. — Hon. Ernest 8. Gantt, Judge.
    Affirmed.

      Claude R. Ball for appellant.
    (1) The alleged false representations are too absurd to induce belief in their reasonableness, and the evidence of Nebel shows this clearly. State v. Cameron 117 Mo. 641; State v. Lawrence, 178 Mo. 350. (2) The information does not describe the trick or false pretense and therefore charges no crime denounced by either Section 4565 or Section 4765. State v. Pickett, 174 Mo. 663. (3) The statement of the case to the jury was an unpardonable error and was intended to poison the minds of the jury against the defendant, and defendant’s objections should have been sustained and standing alone is sufficient to reverse this judgment of conviction. (4) The cross-examination of the defendant by the prosecuting attorney, on matters not brought out in chief, is in strict violation of Section 5242, and objections were timely made. State v. Potts, 239, Mo. 403; State v. Nibarger, 255 Mo. 296'. (6) After Prosecuting-Attorney Nowlin, Hammett and Wage-ner had testified about their conversation with defendant at Bellflower, it was, to say the least, unfair to the defendant, for the court to permit him to be cross-examined about matters that they did not detail as part of their conversation with defendant. “While it may not of' itself have been reversible error, the manner of getting it before the jury must be considered unfair practice.” Wojtylak v. Coal Co., 188 Mo. 287. (7) The improper conduct of the prosecuting attorney in his closing argument and improper remarks was in .violation of the rights of the defendant and if no other error wa’s in the record than this it is sufficient to reverse the judgment in this case. State v. Bobbst, 131 Mo. 338; State v. Potts, 239 Mo. 403. (8) The court erred in admitting the testimony of Jones, Cox and Martin, postmasters at Frankford, Foley and Perry, showing that they contributed at meetings held by Mastín at those places and showing the total amount of such contributions, because, among other reasons, the defendant was not on trial for defrauding the public and because the evidence shows that defendant had not retained one cent entrusted to his care and the court should have given defendant’s instruction withdrawing their evidence from the consideration of the jury. (9) The instructions of the court we respectfully submit are not justified by the authorities. They are erroneous, because they do not follow tbe charge in the information, and- are broader than tbe charge. The information cannot be cured in this manner. State v. Smith, 119 Mo. 447. (10) Instruction 3, says, “And if you find that at the time the said moneys were collected and delivered to the defendant, if you so find, the defendant intended to keep said moneys as his own to do with as he pleased, and if you further find from the evidence that the defendant did keep said moneys so collected as his own,” etc. And it further in effect said that if after receiving said money defendant gave it to either Red Cross, the American Fund for the French Wounded, or to any other person, association, or corporation, that is no defense in this case. Such an instruction is not the law and is not the law of this case And further such instruction is not based upon the information.

      Frank W. McAllister, Attorney-General, and Clarence P. LeMire, Assistant Attorney-General, for respondent.
    (1) Count one of the information is sufficient and has been substantially approved by this court. Sec. 4765, R. S. 1909, Laws 1913, p. 222; State v. Young, 266 Mo. 730; State v. Young, 195 S. W. 998-; State v. Wilson, 223 Mo. 159; State v. Loisch, 180 S. W. 875. (2) The testimony of Jones, Cox and Martin was admissible to prove intent. State v. Rasco, 239 Mo. 575; State v. Wiesman, 238 Mo. 555; State v. Hyde, 234 Mo. 224; • People v. ' Molineux, 168 N. Y. 264; State v. Wilson, 223 Mo: 169; State v. Turley, 142 Mo. 411. (3), The instructions given by the court of its own motion together with those given on behalf of defendant were in approved form and cover all the issues in the case. State v. Young, 195 S. W. 198; State v. Young, 266 Mo. .723; State v. Meals, 184 Mo. 256; State v. Campbell, 210 Mo. 229. (4) The court did not err in permitting the prosecuting attorney to cross-examine the defendant as to matters brought out in the direct examination. State v. Kaiser, 124 Mo. 651; State v. Clinton, 67 Mo. 383. (5) Argument of counsel will not be reviewed in the absence of exceptions saved to the ruling of the court thereon. State v. "Whitsett, 232 Mo.. 511; State v. Harvey, 214 Mo. 403; State v. Clapper, 203 Mo. 549.
   WILLIAMS, J.

The information upon which defendant was tried in the Circuit Court of Montgomery County, was in two counts. He was acquitted upon the second count, but was convicted upon the first count and his punishment was assessed at two years in the penitentiary. Defendant duly appealed. Count one of the information, omitting formal parts, was as follows:

“S. S. Nowlin, Prosecuting Attorney within and for the County of Montgomery, in the State of Missouri, under his oath of office, informs, the court and charges the fact to be that one John J. Mastin on or about the 11th day of June, 1918, in the County of Montgomery, in the State of Missouri, then and there with intent unlawfully and feloniously to cheat and defraud one Forest Nebel, then and there unlawfully, knowingly and feloniously by use of a trick and deception and false and fraudulent representation, statement and pretense, did falsely and fraudulently represent and pretend to the said Forest Nebel that he, the said John J. Mastin, was then and there in the employ of, at a salary of one dollar per year, and the representative and authorized agent of the United States G-overnment for the purpose of raising funds for war work of various kinds and with which to relieve those who were suffering on account of the present war, and that he, the said John J. Mastin, had full right and. authority from the United States Government then and there to collect money as an employee of the said United States Government to be used in the prosecution of the present war, and for the relief of the aforesaid war sufferers. That under the aforesaid false and fraudulent representations, he the said John J. Mastin, after having then and there made most eloquent patriotic, address and speech to the aforesaid Forest Nebel and others then and there assembled, in pursuance of his purpose to cheat and defraud did cause to he taken for him as the representative and authorized agent of the United States Government as aforesaid a collection for the aforesaid, war work and the relief of war sufferers and the said Forest Nebel believing the said false and fraudulent representations and statements and pretenses made as aforesaid by the said John J. Mastin to be true and being deceived thereby, was induced by reason thereof and did then and there contribute an give and pay to the said John J. Mastin the sum of twenty-five c.ents, lawful money of the United States, of the value of twenty-five cents, and the said John J. Mastin by means and use of said trick, deception, false and fraudulent representations, statements and pretenses so made as aforesaid, then and there unlawfully, knowingly and feloniously did obtain from him the said Forest Nebel the sum of twenty-five cents, the money and property of the said Forest Nebel, with intent then and there unlawfully and feloniously to cheat and defraud him, the said Forest Nebel of the same..
“Whereas, in truth and in fact, the said John J. Mastin did not have any right or authority then and there to represent the said United States Government, and was not then and there the representative or authorized agent of said Government to collect money for any sort of war work or for the relief of war sufferers. That- he was not then and there in any manner employed by the said United States Government, and he, the said John J. Mastin, well knew that he, the said John J. Mastin, did not have any right or authority then and there to collect or receive money for or on account of or as an employee of the said United States Government or as an employee of said Government to collect and receive money for war work or for the relief of war sufferers, and he, the said John J. Mastin was not then and there in any manner whatsoever an employee of the said United States Government; against the peace and dignity of the State.”

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

On June 11, 1918, appellant delivered a patriotic •lecture at Price’s Branch, a small town in Montgomery County, Missouri. He made a very eloquent speech, touching the hearts of his hearers; he stated that he had been “over there” and detailed many atrocities committed by the German soldiers in Belgium. Near the close of his speech he stated that he was working for the Government' on a salary of one dollar per year and that he was taking voluntary contributions for the wounded soldiers of Prance and Belgium; that he did not need the money personally; that it all went to help, the war sufferers, and that he always contributed liberally ‘ to local Red Cross organizations. At the close of his speech and at appellant’s request, the hat whs passed around to receive voluntary contributions for the above purpose.

One Forest Nebel, the prosecuting witness in this case, was in the audience and having heard the speech, believed that appellant was the agent of the Government and authorized by the Government to solicit donations for the benefit of the wounded soldiers of Prance and Belgium, and so believing and by reason of the statement made by the appellant, contributed the sum of twenty-five cents.

It was shown that appellant had- made similar speeches at near-by towns shortly before and shortly after the one in question and at each of these places people, believing and relying on his statement that he was in the employ of the Government, contributed small sums.

On June 16, 1918, the prosecuting attorney of Montgomery County, together with two or three other citizens of the county, called upon appellant at the hotel in Bellflower, Missouri. In answer to questions there made by the prosecuting attorney and others the appellant stated that he was not employed by the Government to make the speeches or take the collections,- that the money which he collected was his, that he did not need to account to anyone for it, but that he could do with it as he pleased. In a day or two after this interview defendant was arrested and remained in jail until his trial.

The evidence upon the part of the defense was substantially as follows:

Some of appellant’s witnesses stated that they heard the appellant make the address in- question, but did not hear him say that he was working for the Government. Some of appellant’s witnesses, however, did testify that in the speech appellant stated that he was working for the Government at one dollar per year. The appellant, testifying in his own behalf, stated that he did not represent himself to be an agent or representative of the Government, but that in his speech he made the following statement:

“In order that you may understand that there is a call for every man to do his bit, and that in this work there is no spirit whatever of self-centered interest, I want to say that there are twenty thousand men, twenty thousand speakers, who are doing the same identical work that I am doing for one dollar per year; they come from the Publicity Department at Washington, and they are laying their very lives upon the alter of their country; they are sacrificing that others may live. ’ ’

Appellant further testified that at the close of his speech he made the following remark:

“For four months and a half I have been doing all that I could along these lines. I have been giving liberally to the Red Cross; I have been giving liberally to thrift stamps; I have been using alb the ability in my power for my Government that I might have a part in this great wort — the emancipation of humanity. I am not on a mission of charity. It is not my purpose to come here and beg you. For several months I have been donating my collections, outside of the expenses, to the Red Cross. For two weeks I am going to give all that I get in the voluntary contributions to the French Fund for the Wounded, and if you people want to contribute anything you can do so; it must be voluntarily. If you want to give a penny, give it, and if there is a man in this house who wants to give as much as one dollar, let me know who you are and I will see that you get one of Gypsy Smith’s latest books, ‘Our Boys,’ and a part of this goes to the Society for the French Wounded.”

Appellant further testified that at the time he collected the money he did not intend to appropriate the fund to his own use, and that he had not so appropriated it. He testified that, after paying for the Gypsy Smith books which he delivered and after paying his necessary expenses, the net profit remaining from his speeches in Montgomery County was $69.31, and that on June 28, 1918 (after he was arrested), he forwarded this amount by draft to the American Fund for French Wounded, 73 Park Avenue, New York City, A copy of the letter sending the money, together with a letter from the American Fund for French Wounded, acknowledging receipt of the above amount on July 2, 1918, were introduced in evidence.

I. The information in this case is drawn under Section 4765, Revised Statutes 1909, as amended by Laws 1913, page 222.

The information follows substantially the form which' was approved by this court in the case of State v. Wilson, 223 Mo. 156. We are of the opinion that the information sufficiently charges an offense under the above statute.

II. It is contended by appellant that the court erred in overruling his objection to certain portions of the opening statement made to the jury by the prosecuting attorney. Concerning this point it is sufficient to say that no reference whatever is made to the same in the motion for a new trial. The point has not theretofore been saved for appellate review.

III. It is further contended that the court erred in permitting the prosecuting attorney, over appellant’s objection and exceptions, to cross-examine the defendant about matters which were not referred to in his examination In chief.

We have carefully and painstakingly read the lengthy examination of the appellant, for the purpose of passing upon the merit of the above point. The only improper cross-examination permitted by the court which we are able to discover was that portion of the cross-examination wherein the prosecuting attorney was permitted to interrogate the defendant as to where he had lectured each day during the two weeks preceding his visit to Montgomery County. In the examination in chief no reference was made to defendant’s whereabouts or where he lectured during the above period, and the cross-examination was therefore at least a technical violation of the well known rule. In reply to the questions defendant answered that he did not remember and could not tell unless he could refresh his memory from a memorandum which he did not have with, him.

In the case of State v. Barrington, 198 Mo. 23, l. c. 81, the rule here applicable was stated as follows:

“In order to warrant the reversal of a judgment on the ground of an improper cross-examination, we take it that, giving the statute upon that subject a reasonable construction, such cross-examination must have some reference to matters material in the cause. to which the defendant, as a witness, did not refer in Ms examination in chief; or if immaterial, it mnst be along a line and npon subjects wbicb would have a tendency to prejudice the jury against the defendant or his case.”

The cross-examination of which complaint is made was entirely immaterial and was of such nature as would not in any manner tend to prejudice' the jury against the defendant." We therefore disallow this point.

IY. It is contended that the court erred in admitting evidence to the effect that defendant had made the same speech at other places and that persons hearing said speeches and relying upon like representations had made small contribuí ons. This evidence was admitted without any objection being made thereto by defendant. The above point is therefore not here involved.

V. It is also contended that the prosecuting attorney made improper remarks in his closing argument before the jury. Upon an inspection of the record we find that the alleged improper remarks were nowhere properly preserved in the bill of exceptions. The only reference concerning the same is found in the motion for a new trial. It is well settled that matters of exception should be preserved in the bill of exceptions and that, the mere statement in the motion for a new trial as to what occurred at the trial is no proof that the same did in fact occur. The above point was therefore not properly preserved for appellate review. [State v. Teeters, 239 Mo. 475, l. c. 483.]

YI. It is contended that the court erred in giving each of the nine instructions which it gave of its own motion and likewise erred in refusing to give fifteen different instructions requested by the , p , , T, , , „ , defendant. It would serve no useful purpose to copy said instructions into the opinion. Many of these instructions were upon issues involved in the second count of the information upon which there was an acquittal. With those instructions we are not now-concerned.

We are-unable to discover any reversible error in the remaining instructions given by the court. Nor do we discover any reversible error in the refusal of instructions. In so far as the refused instructions correctly state the law the same had already been covered in the instructions given.

While we are of the opinion that the instructions could have been improved as to their grammatical arrangement and construction yet we are unable to find -prejudicial error therein.

Instruction One required the jury to' find, that the defendant acted with the “intent of defrauding” the prosecuting witness. It is true the statute prescribes that the intent must be to “cheat and defraud,” and while it has been held to be reversible error to omit in the instruction the whole of the phrase, “with intent to cheat and defraud” (State v. Norton, 76 Mo. 180, l. c. 181-2; State v. Jackson, 112 Mo. 585, l. c. 590), we have found no case dealing merely with the omission from the instruction of the word “cheat.” Since the words “cheat” and “defraud” are correct synonyms, each of the other (See Webster’s International Dictionary)., we do not believe that the mere omission of the word “cheat” operated, under the circumstances, to omit any essential element of the offense, but that the meaning conveyed, by the word “cheat” was already included in the word “defraud,” an for that reason we hold the 'omission did not constitute reversible error.

It is further contended that the instructions given by the court of its own motion were erroneous in that they were broader than the charge contained in the im-formation.

Instruction One, after requiring the jury to find all the essential elements of the crime, required the jury, as a prerequisite to a conviction, to find, in addition thereto, the following: “and if yon further find from the evidence that at the time said money was collected from said Nebel and delivered to the defendant that he, the defendant, intended to keep said money as his own, to' do with as he pleased, and if you further- find from the evidence that the defendant, did keep said money as his own to do with as he pleased, then you will find the defendant guilty on the first count of the information,” etc.

Instruction Three told the jury that if they found defendant “did not intend to keep the money as his own to do with as he pleased,” etc., they would find him not guilty.

All that the statute requires (Laws 1913, pp. 222) is that the defendant by the means therein enumerated, “with intent to cheat and defraud shall obtain . . . from any person . . . any money,” etc.

It is’ therefore seen that it is the intent “to cheat and defraud” the person who surrenders the money that is the very essence of the offense. What his intention may he with reference to using the money is not, strictly speaking, an element of the offense. The instruction perhaps did in a sense require the jury to find more facts than were necessary to support a conviction, hut the only effect of this enlargement was to throw an additional burden upon the State. It could not have resulted in injury to the defendant, but under the rather ingenias defense which the defendant was permitted to set up .we are of the opinion that the above feature of the instructions were beneficial rather than prejudicial.

The judgment is affirmed.

All concur.


author: WALKER, J.

text:
    JENNIE HURST HENRY, Appellant, v. EXCELSIOR SPRINGS MINERAL WATER & BOTTLING COMPANY et al.
    Division Two,
    March 28, 1919.
    1.LEASE: Removal: Termination: Conditions and Covenant: Rule of Construction. Whether or not a failure to comply with a requirement in a written lease that the lessee should remove within a designated time upon named conditions will terminate the lease, is to he determined from the intention of the parties as disclosed by the instrument, giving it such a construction as will best effectuate that intention.
    2.-: -: -: General Rule. It is a general rule that a breach by a lessee of the covenants of a perpetual lease will not work a forfeiture in the absence of an express proviso to that effect.
    3.-: -: -: Covenant or Condition. Clauses in a lease will be construed as covenants rather than as conditions, if that can be reasonably done without contravening the evident intention of the parties.
    4.-:-: -: Sale of Mineral Water. Where the moving purpose of the lessor, by a perpetual lease of a named lot, free from rent, was to secure a permanent tenant who would confine his activities to 'the sale of a certain kind of mineral water; the lessor might require the lessee, upon written notice, to remove to another lot to be designated by the lessor, pie lease fixing as a penalty a forfeiture of the improvements to the lessor for failure to remove within four months after notice, but containing no express provision for a termination of the lease for such failure; the purpose of the lessee was to secure a permanent location for his bottling business and the sale of mineral water, and to accomplish this he agreed to sell only the water named, at no time to suspend such sale for a year, to pay special taxes against the lot, and' to remove upon notice from the first location to another designated by the lessor, it was not the intention of the parties that the lessee’s failure to remove within the designated time would work a forfeiture of the lease.
    5.-:-:-: Sale of Lot. The fact that, after the lessee failed, according to the terms of the lease, to remove to another lot designated by the lessor, and the lessor sold the lot to a third party who conveyed it to the lessee, did not terminate the lease or affect the question of its forfeiture.

      6. -:-: -: -: Improvements. The improvements, although removed by the purchaser of a lot to a lot designated by the lessor after the time within which removal was to'be made had expired, by the express terms of the lease became the property of the lessor.
    7. -: -: — : Quieting Title: Bemaining in Possession. Where under the terms of a lease it became the duty of the lessee after notice to remove to another designated lot with reasonable expedition, the time he remained in possession after such notice may be pertinent for consideration in another proceeding, but is not material in the suit to quiet title.
    Appeal from Clay Circuit Court. — Hon. Frank P. Divel-biss, Judge.
    Appibmbu.

      Martin E. Lawson, Ringolsky & Friedman and Graven & Moore for appellant.
    (1) "Whatever right Ettenson and his grantees acquired in the new location on plaintiff’s lots, was acquired by compliance with the terms of the notice served under the provisions of the lease, by which the lessor reserved the right to require him to remove to the new location within four months after notice served. He did not move within four months thereafter, and he lost the right to do so. (2) "When Ettenson bought the original location after the time to remove therefrom had expired, he caused his leasehold title, if any remained, to merge into the fee title purchased. Chrisman v. Linderman, 202 Mo. 609; 20 Am. & Eng. Ency. Law (2 Ed.), 588, 593; 18 Am. & Eng. Ency. Law (2 Ed.), 353; Fowler v. Smith, 5 L. R. A. 721, note; Anderson’s Law Dictionary, Title “Merger.” (3) Ettenson, at no time, had a lease both on his original location and on the property to which he had been directed to remove; and as he was still in possession of, and hence claiming a lease upon his original location at the time he purchased the same, he cannot occupy inconsistent positions and afterward claim that at the date of his purchase his lease covered the' new location on plaintiff’s lots, to which he had been directed to remove. Hence, he cannot claim that his lease did not merge in the fee. (4) Leasehold rights to plaintiff’s lots conld only attach to Ettenson, and through him to defendants, by actually taking possession thereof, within, four months after notice served. The right to plaintiff’s lots could not begin until he actually took possession, while a right to do so existed. It was a condition precedent to any right. 6 Am.' & Eng. Ency. Law (2 Ed.), 500; 4 Encyc. PL & Pr. 627. (5) “Where a leasor has a right to compel the lessee by notice to remove from the leased premises to other premises, this clearly constitutes a condition subsequent and the lessee’s title to the original leased premises is not • destroyed until the leasor not only gives the required notice, but enters or the lessee moves. In other words, Ettenson’s title to the ground originally covered by his lease was not ended and did not attach to the ground to which he was required to move until he either removed or the lessor entered upon the original ground. Ettenson having purchased the original ground, and the lessee having virtually Avithdrawn the notice to remove, and the four months having elapsed, Ettenson could not then create a title to the ground to which he had been .required to remove by removing without the lessor’s knowledge or consent. Adams v. Lindell, 5 Mo. App. 197, 72 Mo. 198; O’Brien v. Wagner, 94 Mo. 93; Mo. Historical Society v. Academy of Science, 94 Mo. 459; Ellis v. Kyger, 90 Mo. 600.

      Culver & Phillips for respondents.
    (1) The instrument dated August .21, 1906, was a lease of Lot A for a perpetual term with this limitation: it was determinable at the expiration of four months from the service of notice by the lessor that Lot B. (or Lot C.), had been substituted as the demised premises. The notice ipso facto terminated the leasehold as to Lot A and created it in Lot B at the expiration of the four months’ period; and thereupon the substituted premises were held by the lessee “subject to all the terms and conditions of this lease precisely as if it had been originally leased hereby.” No act of the lessee was necessary to effect the change. .There is no provision requiring the lessee to take prosession of the substituted premises within the four months’ period. There is a covenant that the lessee shall vacate and remove the pagoda from Lot A within that time; but for his failure to keep that covenant there is no provision that the lease shall be forfeited. On the contrary, it is expressly stipulated that for such default the pagoda shall be forfeited. Since there is no provision that the lease may be forfeited for the failure of the lessee to vacate and remove the pagoda from Lot A none could be declared on that account. Van Natta v. Brewer, 32 N. J. Eq. 268; Johnson v. Gurley, 52 Tex. 222; Texas Coal Co. v. Lawson, 32 S. W. 848; In re Pennewell, 119 Fed. (C.. C. A.) 141; 18 Am.' & Eng. Ency. Law, 369; 24 Cyc. 1349 et seq.; 24 Cyc. 920-921; Bergland v. Frawley, 72 Wis. 559; Phillips v. Tucker, 3 Ind. 132. (2) Not only is a party precluded from declaring a forfeiture of a contract for a breach even of a condition subsequent, in the absence of a forfeiture clause, but in such circumstances he cannot even obtain a forfeiture or cancellation by the aid of a court of equity, and is left to his action for damages. Anderson v. Gaines, 156 .Mo. 664; Studdard v. Wells, 120 Mo. 29; Chicago Ry. Co. v. Titterington, 84 Tex. 218; 19 S. W. 472; Gardner v. Knight, 124 Ala. 273; 6 Cyc. 288. (3) The provision in the lease that the lessor might substitute Lot B for Lot A by giving four months’ notice was a limitation upon the term for which Lot A was demised. Upon the expiration of the four months the term as to that lot expired ipso facto without any re-entry or other act on the part of the lessor; and the lessor could immediately maintain an action of unlawful detainer to recover possession. Miller v. Levi, 44 N. T. 489; Estelle v. Linsheer, 30 N. T. Sup. 243; 24 Cyc. 1360.
   WALKER, J.

This is a suit brought in the Circuit Court of Clay County to quiet the title to certain lots in Excelsior Springs, under Section 2535, Revised Statutes 1909. Upon a trial hy the court, there was a finding that plaintiff was the owner in fee of the lots, subject to the right of the defendant, the Excelsior Springs Mineral Water & Bottling Company, as lessee, to have and to hold a certain portion of one of said lots subject to the terms of the lease. Prom this judgment, plaintiff appeals.

In August, 1906, I. J. Ringolsky, the then owner of the lots in question, leased one of same to Henry Etten-son, to be used as a place for the sale of mineral water, which sale was not to be suspended for one whole year at any time. The lease was to be perpetual and free from rent; it was determinable upon the lessor giving written notice to the lessee to that end, at any time within three and one-half years from the date of the lease, requiring the lessee within four months after the delivery of the notice, to vacate the leased ground; and the lessor was to thereupon designate for occupancy hy the lessee either one of a number of other lots described in the lease. In the event of a failure to remove within the time limited, the improvements were to be forfeited to the lessor.

The lot designated in the notice of removal was to be held by the lessee on the same terms. as that originally leased, except as to vacation.

Ettenson subsequently transferred his interest in the lease to the defendant, the Excelsior Springs Mineral Water & Bottling Company.

On May 30, 1908, the lessor gave the lessee a written notice to remove to one of the lots described. The lessee failed or refused to remove his improvements from the lot he was occupying, to that designated in the notice, within, the four months provided by the lease.

On the 19th day of October, 1908, the Elms Realty Company, grantee of the lessor Ringolsky, served a notice on the lessee, reciting that on May 30, 1908, he had been notified to remove from the lot occupied to the one designated in the notice, and had failed so to do, and that all the rights under the lease were forfeited, and that it was the owner of the improvements on the lot from which the lessee had been required to remove.

On the 31st day of October, 1908, the Elms Realty Company, sold and conveyed in fee to said Ettenson the ground from which he had been required to remove. Sometime after the purchase of the fee in that lot, his grantee, the Excelsior Springs Mineral Water & Bottling Company, removed the improvements therefrom to the lot which had been designated for occupancy by the lessee in the original lessor’s notice. Subsequent notices were given to Ettenson and his grantee by Ringolsky; one, that the lease was forfeited, and another, that the improvements on the lot were also forfeited.

The appellant contends that the requirement as to the removal constitutes a condition subsequent, and that a failure to comply with same within the time limited términated the lease.

Much difficulty has been encountered in the attempt to frame arbitrary rules for the classification of conditions and convenants. It is now generally conceded that the safest and most satisfactory course is to ascertain as near as can be done, the intention of the parties from the instrument they have executed, and then give it such a construction as will best effectuate that intention. [Kew v. Trainor, 150 Ill. 150; Hill v. Bishop, 2 Ala. l. c. 322; Howland v. Leach, 28 Mass. 154; Palmer v. Merid. Brit. Co., 188 Ill. 508; 24 Cyc. 920.]

In so doing, we are to be guided by the general rule that a breach by a lessee in the covenants of a lease will not be held to work a forfeiture of the term in the absence of an express proviso to that effect (Johnson v. Gurly, 52 Tex. l. c. 226; In re Pennewell, 119 Fed. l. c. 141; Hoyt v. Kimball, 49 N. H. 322; 16 R. C. L. p. 115, Section 633 and notes; 24 Cyc. 1349); and that courts will construe clauses in deeds as covenants rather than conditions, if the same can he reasonably done without running counter to the evident intention of the parties (Lynde v. Hough, 27 Barb. [N. Y.] 415; Blumer v. Insurance Co., 45 Wis. 622; Livingston v. Stickles, 7 Hill [N. Y.] 254; Thornton v. Trammell, 39 Ga. 202).

The moving purpose of the lessor was to secure a permanent tenant who would confine his activities to the sale alone of a certain kind of mineral water. That this arrangement was deemed advantageous to the lessor in evident from the perpetuity of the tenure, and the * immunity of the lot from rent. As further indicative of this purpose is the provision, not that the lessor may terminate the lease, but require the lessee to accept another location where the business may be conducted as before; and that the latter may not be further molested in his new location, it is provided that no further removal shall be required.

The purpose of the lessee was to secure a permanent location for the transaction of the business. To accomplish this purpose he agreed to sell only the mineral water named, and at no time to suspend such sale for a whole year; to pay special taxes and assessments for betterments oh the lot occupied; and to remove from the first location within the time required by the lease, to such lot as might be designated by the lessor. The penalty for the lessee’s failure in this regard was to be the forfeiture of his improvements. The recapitulation of the terms of the lease construed according to their plain provisions, does not sustain the conclusion that it was the intention of the parties, that a failure to remove upon notice within the time stated was to work a forfeiture of the term. If we conclude otherwise, we must not only ignore the general rule stated, because there is no express provision authorizing a forfeiture for the reason contended by appellant. Not only this, but it is clearly indicated that this ground of forfeiture was not in tlie minds of tlie parties. Otherwise they would not have limited the forfeiture to the improvements of the lessee or to his non-use of the property for one whole year. If, therefore, any application is to he given to the doctrine that the expression of one thing excludes others, this of itself affords sufficient reason for the overruling of the appellant’s contention.

In addition, there is the sanctity of the contract solemnly entered into to he considered. This requires the parties to do what they have expressly agreed to do, no more. If they have made, either hy express terms or necessary intendments., no provision for a dispensation of the rule, the law gives none. [Moyer v. Mitchell, 53 Md. l. c. 177; Dermott v. Jones, 2 Wall. 8.] In the application of this rule the remarks of Lord Denman, in Aspidin v. Austin, 5 Ad. & El. N. S. (48 Eng. C. L. 682), are apposite. He said: “Where parties have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by any implications; the presumption is that, having expressed some, they have expressed all the conditions. . . . It is one thing for the court to effectuate the intention of the parties to the extent to which they may have, even imperfectly, expressed themselves, and another to add to the instrument all such covenants as, upon a full consideration the court may deem fitting for completing the intention of the parties, hut - which they, either purposely or unintentionally, have omitted. The former is hut the application of a rule of construction to that which is written, the latter adds to the obligations hy which the parties have hound themselves, and is, of course, quite unauthorized, as well as liable to great practical injustice in .the application.”

The fact in evidence that Ettenson subsequently became the absolute owner of the lot from which he was directed to remove has no relevancy in the determination of the matter at issue. His, or his grantee’s right to the use of the lot designated attached upon the service of the notice of removal, and so far as the terms of the lease are concerned, he was entitled to enter upon and occupy the same for the purpose described, at any time within one year thereafter. Nor have we concerned ourselves with the matter of the improvements placed upon the lot by Ettenson, from which he was required to remove; these, under the express terms of the lease, became the property of the lessor upon the failure of the lessee or his grantee to remove within four months.

Nor is it material as to the time Ettenson continued in possession of the lot after he was notified to remove from same. Under the terms of the lease it became his duty, upon the service of the notice, to remove therefrom with reasonable expedition. The fact that he may not have done so is a matter which may have been entitled to consideration in another proceeding than the one at bar.

The conclusion reached by the trial court is manifestly correct. There is no error justifying a reversal, and the judgment is affirmed.

All concur.