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    THE STATE v. FRANK DALY, Alias A. C. BILES, Appellant.
    Division Two,
    March 31, 1908.
    1. EVIDENCE: Res Gestae: Conduct and Statements. The movements, actions, conduct, and voluntary statements of a defendant, made or done after the commission of the alleged offense, are always admissible in evidence against him, whether a part of the res gestae or not.
    2. -: -: -: Accomplice: Cautionary Instruction. And such conduct or statements may he testified by defendant’s accomplice, the court giving a cautionary instruction thereto.
    3. EXPERT: Qualification: Preliminary Question. The question of whether a witness possesses the necessary qualifications to render him competent to testify in the character of an expert, is a preliminary one to be passed upon by the trial court after an examination of the witness.
    4. -: -: Witness’s Statement. A witness who subjected the viscera of the deceased to a chemical examination may be an expert, though he says he is not an expert. Knowledge of the matters concerning which the'witness testifies and familiarity with the subject then under consideration are the tests. The weight to be given to his testimony is for the con-' sideration of the jury.
    5. EVIDENCE: Post-Mortem Examination: Accounting for Stomach, Etc. It is not incumbent upon the State to account for the whereabouts of the stomach and intestines of the deceased from the time of the post-mort.em examination by the coroner on one day to the-afternoon of the next day when the viscera were removed from the body at the morgue by the undertaker and embalmer. Nothing appearing to the contrary, it must be presumed that the body and the viscera remained in the care of the keepers of the morgue, where the autopsy was held and the postmortem examination was made, until delivered to the undertaker.
    6. MURDER: Failure to Define Premeditation and Malice Aforethought. Where poison is administered, wilfully and deliberately, in the perpetration of a robbery, and death ensues, the killing, under the provisions of the statute (Sec. 1815, R. S. 1899), is murder in the first degree, and premeditation and malice aforethought are not elements of the offense, and it is, therefore, not necessary to define these terms in the instructions, and a failure to do so is not reversible error, though it would be in an ordinary case of murder in the first degree.
    7. C'ORROBORATION: Accomplice: Instruction. An instruction which told the jury that “the evidence of an accomplice in a crime, when not corroborated by the evidence of some person or persons not implicated in the crime, as to matters material to the issues, that is, matters connecting the defendant with the commission of the crime as charged against him, ought to be received with great caution by the jury before they should convict defendant on such testimony,” is full and complete within itself, and no other definition of the word “corroboration” was required.
    8. -: -: Evidence. The testimony of defendant’s accomplice in this 'case is held to be thoroughly corroborated by the testimony of other witnesses.
    9. INSTRUCTION: After Jury Has Retired: Asked For by One Juror. After the jury have been instructed and have retired to consider of their verdict, any one or more of the jury have the right to ask for further enlightenment and information from the court upon any question involved in the case which they are considering.
    10. -: -: -: Mistaken Diagnosis and Wrongful Treatment. Defendant placed morphine in beer and gave it to Robert Harvey to drink and took him to a vacant lot, where he was found next morning in a stupid condition, and some of the physicians at the hospital diagnosed his trouble as alcoholism, but others as morphine poisoning. After the jury had retired to consider of their verdict, one of the jurors sent to the court a note asking if a wrong diagnosis of a disease from . which Harvey was suffering .and the treatment given him after he was found, based on such erroneous diagnosis, would affect the guilt or innocence of defendant. Thereupon the court instructed the jury in these words: “Answering the inquiry propounded by a juror in this case, which is hereto attached and made a part hereof to the end that this instruction may be more fully understood by the jury, the court further instructs you: That if you find from the evidence, beyond a reasonable doubt, that the defendant willfully and knowingly administered the poison of morphine to Robert Harvey, as. in the other instructions defined, and that such morphine was so administered in a quantity sufficient to have brought about or caused the death of said Harvey, then the fact that after the administration thereof he may not, from any cause, have received proper medicinal treatment, or the fact of his having been thus poisoned was not discovered until after his death, will not relieve the defendant from liability in this case, provided the jury be satisfied from all the evidence, beyond a reasonable doubt, that said Harvey did die as a result of poison so administered.” Held, that the court’s action was proper, and the instruction was correct. ■
    11. HYPOTHETICAL QUESTION: Modified by Court. It is not error to strike from the hypothetical question certain statements of fact testified to by another witness when such witness himself modified that statement.
    12. -: -'■ — : In Favor of Appellant. And where the expert witness’s opinion, notwithstanding such modification, was favorable to defendant, the. defendant has no cause for complaint.
    Appeal from St. Louis City Circuit Court. — Row. Hugo Muench, Judge.
    Aetikmed.
    H. H. McCluer, John A. Gernez and Thomas W. Ditty for appellant.
    (1) The court committed error in permitting witness Brown to testify to the movements, actions, conduct and statements of defendant after the commission of the alleged offense. It was no part of the ■res gestae. But assuming the competency of the repetition of defendant’s admissions or statements to Brown, then the court should have given to the jury •a, cautionary instruction thereon, and its failure so to do is error. State v. Hendricks, 172 Mo. 669. (2) 'The court committed error in admitting the testimony ■of the witness Hartman as the result of his attempt to make a chemical • analysis of the contents of the galvanized' bucket given him by Spencer Stewart. The •autopsy was held November 11, 1906; at that time the. body was opened up. The body was received by the undertaker on the 12th of November, and the viscera placed in a galvanized bucket, not sterilized. The bucket had been used for washing dead bodies. After passing from Keeton, the undertaker, to Bergasch and from Bergasch to Fath and from Fath to Stewart, it reached witness Hartman on the 14th of November, 1906, at 5:30 p. m. Where was the body from November 11th to November 12? It was not accounted for. State v. Thompson, 132 Mo. 320. In this case there was no attempt to place the viscera in a clean receptacle, nor were precautions taken to prevent the part reserved for analysis from being tampered with. Rogers’ Exp. Test. .(2 Ed.), p. 137; State v. Cook, 17 Kan. 394. Before evidence should have been received as to a chemical analysis, the State should certainly have been required to prove at least the whereabouts of the viscera and body from the day of the autopsy, until the day the bucket was turned over to witness. (3) The court erred in overruling defendant’s motion at the close of the State’s case requiring the State to elect upon which count of the indictment it desired to proceed, there being a failure of proof as to the second count of said indictment. The evidence introduced by the State failed to show that deceased came to his death from the effects of an assault, or that an assault in any way contributed thereto. The court’s failure to sustain said motion forced the defendant to introduce unnecessary testimony and to treat said assault as an element contributing to the death of deceased. The defendant was certainly prejudiced by the court’s action. (4) The court committed error in failing to define the words ‘premeditatedly” and “malice aforethought” used in its second instruction. State v. Sims, 71 Mo. 538; State v. Harris, 76 Mo. 361; State v. Weiners, 60 Mo; 20. The court committed error in failing to define the words “violent passion” and the words “some lawful or just cause or provocation” used in the same instruction. State v. Skaggs, 159 Mo. 581; State v. Strong, 153 Mo. 548; State v. Andrews, 76 Mo. 101; State v. Forsythe, 89 Mo. 667; State v. Hickman, 95 Mo. 330; State v. Holloway, 161 Mo. 145; State v. Reed, 154 Mo. 129. (5) The court committed, error in failing to define the word “corroboration” used in instruction 10'. State v. McLain, 159 Mo. 340; State v. Chyo Chiagk, 92 Mo. 395; State v. Miller, 100 Mo'. 606; State v. Hunter, 181 Mo. 338. (6) The court committed error in giving- its last instruction in response to a communication sent in by one juror. The instruction as given was not complete or correct under the law and the facts. Additional instructions would have been proper had all the jury asked for them. State v. Miller, 100 Mo. 623.

      Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, Arthur N. Sager and C. A. Newton for the State.
    (1) No error was committed by the trial court in permitting State’s witness Brown to' testify to the movements, action, conduct and statements of the defendant after the commission of the alleged offense. Anything that defendant did or said, either prior to, at the time of, or after the commission of the crime charged, is admissible against him. It tends to show his intent, his motive and the means he resorted to of concealing the crime or avoiding detection. 1 Greenl. on Evid., see. 214; 2 Wigmore on Evid., sec. 1048; State v. Harris, 150' Mo. 61; Wright & Carson on Crim. Consp., 217; State v. Erwood, 75 Mo. 210; Lynes v. State, 36 Miss. 625; Hunter v. Com., 7 Gratt. 645; People v. Arnold, 46 Mich. 277; State v. Grant, 86 Iowa 228; State v. Robinson, 52 La. Ann. 623; Walls v. State, 125 Ind. 403. (2) Much stress is laid by counsel for the defendant upon the failure of the experts, who testified on behalf of the State, to take proper care of the parts of deceased’s body which were submitted to the chemist for analysis. This court can not lay down any iron-clad rule as to the way portions of the body should be cared for. Whether the parts taken from the body of the deceased and carried in a bucket, delivered to another witness and by him delivered to still another, and whether the same were cared for in a scientific manner, were questions of fact for the jury to pass upon. These witnesses, like all other witnesses, were seen by the jury, and the jury were in a better position than this court to determine whether or not such witnesses were reliable, and correctly stated the facts. If said witnesses told the truth about the way in which the parts of deceased’s body were cared for, the places where said parts were kept and the result of the chemical analysis, then there was substantial evidence from which the jury could find that the deceased came to his death by poisoning. (3) Much stress is laid by counsel for the appellant upon the failure to define the terms “wilfully” and “deliberately,” which definitions were doubtless inadvertently overlooked by the trial court. In an ordinary ease of murder in the first degree, this would be a fatal error, but the case at bar is not an ordinary case of murder in the first degree. Section 1815 makes this murder in the first degree without the elements of premeditation and malice aforethought, so long as the poison was administered “wilfully” and “deliberately” in the perpetration of a robbery. State v. Jennings, 18 Mo. 435; State v. Green, 66 Mo. 648; State v. Hopkirk, 84 Mo. 287; State v. Neuslein, 25 Mo. 111; State v. Green, 66 Mo. 631; State v. Swain, 68 Mo. 605; People v. Vasquez, 49 Cal. 560; State v. Boice, 1 Hous. Crim. Cas. 355; State v. Jones, Ib. 21; State v. Meyers, 99 Mo. 113; State v. Poster, 136 Mo. 655. (4) The argument of defendant’s counsel that error was committed in allowing defendant to be tried upon an information which contained two counts, is without merit. At repeated intervals during the trial of the case, the defendant moved the court to require the State to elect upon which, count it would stand. This motion was repeated at the close of the testimony given by Dr. Gradwohl, and the State elected to try on the first count, and the case was submitted to the jury on the first count alone. (5) The alleged failure of the trial court to define, .by instructions, the words “violent passion,” and “some lawful or just cause of provocation,” cannot be considered as error. Aside from that, defendant did not specifically save his exceptions to the alleged failure at the time.
   BURGESS, J. —

On the 12th day of February,. 1907, the grand jury of the city of St. Louis returned an indictment against the defendant, charging Mm with murder in the first degree. . The indictment was in two counts, the first of which charged that the defendant gave to one Robert Harvey a large quantity of morphine mixed in a glass of beer, which said beer and morphine the said Harvey drank, and from the effects of which he died. The second count charged that the defendant gave to one Robert Harvey a large quantity of morphine mixed in a glass of beer, wMoh said Harvey drank, and that the defendant then struck, beat, kicked and wounded the said Harvey in the chest and body, inflicting certain mortal wounds and fractures of the ribs, and from the effects of said morphine and wounds so administered the said Harvey died. The defendant was put upon trial on March 22, 1907, and convicted of murder in the first degree under the first count of the indictment. Defendant’s motions for a new trial and in arrest of judgment having been overruled, he appealed.

The evidence for the State tended to prove that the defendant was known by two names, Frank Daly and A. O. Biles, and that he resided in the city of St. Louis. The deceased was an engineer, and lived with his family at Osage City, Missouri. For several days prior to the 9th day of November, 1906, the deceased and the defendant had been visiting a saloon-known as the Ohio saloon, on the southwest corner of' Market and Seventh streets, in St. Louis, and- had been drinking considerably. On the afternoon of said day, the deceased, the defendant and one Joseph Brown were sitting at a table in said saloon, drinking beer, the deceased usually paying for the drinks-A dispute arose between the deceased and the waiter as to whether or not he, the deceased, had paid for three bottles of beer which he had ordered and. which had just been brought to the table by the waiter. Having been assured that the beer had not been paid for, the deceased got up from the table, pulled a roll of bills out of his pocket and handed the waiter a. five-dollar bill to pay for the beer. While the deceased was doing this, the defendant and Brown were-sitting at the table watching him, and the defendant,, when he saw the bills, “nudged” Brown in a significant way, calling his attention to the money. The-deceased returned to the table and sat down, but immediately got up and went to the toilet room. As soon as he had left the table, the defendant asked Brown for a dime, saying, “I know where I can make a piece of coin.” Brown gave him a dime, and the defendant said, “I will go and get some morph.” -He left the saloon and came back in about five minutes. In the meantime the deceased had returned from the toilet room, and was sitting at the table. The deceased and Brown each poured out a glass of beer from the bottles ordered by the former. Daly, however, did not do so just then, but took his empty glass and held it under the table, and Brown noticed him making some peculiar motions with his hands as if trying to put something into the glass. Brown kept talking to the deceased, who did not appear to notice what Daly was doing. The defendant,, while the others were talking, poured beer into this glass and managed to exchange his glass for that of the deceased, who had not yet drunk his glass of beer and whose attention was attracted in a direction away from the table by Brown. The defendant then said, “Here goes,” and all three drank. After drinking, the defendant poured the remainder of the contents* of his bottle and that of the deceased into one glass, passed it over to the deceased and said, “Drink it up,” and the deceased did so. Some more beer was drunk, and all laughed and sang, but the deceased seemed “funnier” than previously and his throat soon got weak. The three men left the saloon, walked south on Seventh street to Clark avenue and turned into an alley, where the deceased, who appeared to be much muddled, sat or fell down. He got up, and again fell down. His companions took hold of his arms, raised him up and walked west on Clark avenue with him as far as Eighth street, where the deceased sat down in a doorway.. He appeared to be in a stupor, and acted as if under the influence of an opiate, and had not spoken from the time he left the saloon. The defendant and Brown assisted him to his feet, and the three then went south on Eighth street as far as Spruce street, where there was a vacant lot, into which they went, and there the deceased sat down, his head bent forward. Daly and Brown went out to the street to see if anybody was approaching, and then returned to where deceased was sitting. The defendant then grasped the deceased around the neck and threw him back flat on the ground, put his knee on deceased’s neck, and both defendant and Brown went through the pockets of the deceased, the defendant taking all the money' of the deceased, and Brown taking two knives and a package of tobacco from deceased’s pockets. After robbing the deceased, the defendant stooped down and struck him with something on the breast or stomach, and made the remark to Brown that “it would keep him from squealing.” Before leaving, the defendant picked up a new John D. Stetson black hat worn by the deceased, and both men proceeded to Crouse’s pawn shop, where they sold the hat for $1.50. They then went to a saloon and took a • drink, and afterwards the defendant divided the booty with Brown, the former stating that he got $1.50 out of deceased’s pockets. After boarding a Market, street car, both men began talking about what they had done, and the defendant said, “I gave that son-of-a.-bitch enough morphine to kill a man.” After defendant and Brown had been arrested, and Brown had confessed and pleaded guilty to the charge against him, the defendant walked by Brown’s cell, and, referring to Brown’s statement or confession which defendant had read in a newspaper, he said, “You go on up there and go for ninety-nine years; they can’t do nothing with you as you got your sentence; you go on there and take it all on you, and I can beat it. I will send you a couple of dollars a week while you are in the penitentiary.”

Theodore Young, who ran a drug store at No. 600 Market street, testified that about 6:50 o’clock on the evening of November 9th the defendant visited his drug store and bought ten cents worth of morphine. He was asked by Mr. Young what he wanted to do with it, and the defendant said he was an habitual user of morphine. Mr. Young told him he would have to register his name on the poison register. The defendant gave his name as Frank Daly, and after securing.the morphine he left the store.

Joseph Crouse, a pawnbroker at No. 9 South 6th street, testified that the defendant and another man came to his place of business at ten minutes before eight o’clock on the evening of November 9th, and sold him a John D. Stetson hat for $1.50-, which hat was identified as the hat worn by the deceased.

Officer Butler testified that on the' morning of November 10, 1906, at seven o’clock, he found a man on a vacant lot, near the corner of Eighth and Spruce streets; that the man was unable to speak and that his pockets were all turned inside out. Witness said that he appeared to be thoroughly chilled, as “his skin was sort of purple.” After taking him to the city hospital, and deceased had been given a bath, witness asked him to give his name, and he said “Harvey,” and then said he lived at Osage City, but while witness was asking these questions the deceased did not open his eyes.

Dr. Birdman and Dr. Bevan, of the City Hospital, testified as to the condition of the man' when he was brought to the hospital by Officer Butler. The substance of their testimony was that the man was very drowsy and appeared to be suffering from exposure and alcoholism. After receiving a sponge bath, he was examined more thoroughly by Dr. Birdman, who found indications of bronchitis or incipient pneumonia. His pupils were contracted, his breathing labored, and he seemed very tired. The doctor’s opinion was that the man was suffering Horn the effects of alcoholism and exposure. Dr. Bevan then made an examination, and found the man’s respiration depressed, his pupils contracted and his condition stuporous, so that it was difficult to rouse him. His symptoms indicated that he had taken whisky and also some powerful toxic product. The doctor felt satisfied that the man was suffering from, the effects of morphine particularly, and he gave him a 75th grain of atropine as an antidote for morphine, and the 40th of a grain of strychnine to stimulate the heart. He also found a contusion on his breast, which he pressed, without calling forth any expression or sign of pain, and this fact confirmed the witness in his opinion that the man was under the influence of morphine. His ternerature at the time of the examination was 97.6; his pulse beat 60', and his respiration 12, all below normal. Some timé after administering these medicines to him, the doctor slapped him on the shoulder and asked him what he had been drinking, and he replied that he drank some whiskey and had been out with a friend named Daly. After resting apparently well, the man died in the hospital a little after one o’clock in the afternoon. The man was identified by his widow and also by his brother-in-law, J. F. Holden, as Robert Harvey, of Osage City.

The body was removed to an undertaking establishment, where the internal organs were , removed by the undertaker and placed in a galvanized iro bucket and a piece of cloth tied over the top. This bucket was given to Harry D. Bergasch, who gave it to Dr. H. W. Fath, at the coroner’s office. Dr. Fath gave the bucket to Spencer Stewart, who in turn gave the same to Dr. J. M. Hartman at the morgue. Dr. Hartman testified that he applied the proper tests, and found that the stomach and intestines contained morphine. Dr. Henry J. Scherek and other physicians, in response to hypothetical questions, stated that deceased died from an overdose of morphine. Dr. J. C. Lebrecht, the regular coroner’s physician of St. Louis, testified that he made a post-mortem examination of the body of the deceased, and found bruises on the right upper arm and the right mammary region. A further examination disclosed an oblique fracture of the left sixth and seventh ribs. The deceased’s kidneys ‘were found enlarged and in a hyperaemic condition, and the left kidney contained pus. The lungs were both congested, and the stomach distended. The heart was normal. It was also in evidence that the deceased was a powerful and vigorous looking man, and weighed between 175 and 200 pounds.

The defendant introduced Dr. R. B. H. G-radwohl,. a physician and bacteriologist, who testified that he had had experience in treating cases of morphine poisoning, uraemia and uraemic poisoning, and kidney diseases. In response to a hypothetical question, he gave it as his opinion that deceased did not die from morphine poisoning, but that his death was due to alcoholism, uraemia and exposure combined.

The first point urged by the defendant is that the court committed error in permitting Joe Brown, a witness for the State, to testify to the movements, actions, conduct and statements of defendant after the commission of the offense, the ground taken being that such evidence was not admissible because not part of the res gestae. The movements, actions, conduct and voluntary statements of a person charged with a crime, made after the commission of the alleged offense, and which tend to incriminate or connect him with the crime, are always admissible in evidence against him, whether part of the res gestae or not. We are unaware of any exception to this rule. But defendant contends that, even if properly admitted, the court should have given a cautionary instruction thereon, as the evidence shows that Brown was an accomplice of the defendant in the commission of the offense. There is no merit in this contention, for the record discloses that the court instructed upon that feature of the case.

It is insisted by defendant that Dr. Hartman, who testified as an expert witness on the part of the State, and who subjected the viscera of the deceased to a chemical analysis, was incompetent to testify as such expert because he failed in his preliminary examination and protested against being so denominated. While the witness did not claim to be an expert and protested against being denominated’ such, we think it was more because of modesty than lack of knowledge respecting the matters to which he testified as an expert, for lie showed himself to he quite familiar with the subject then under consideration, and his testimony bears the stamp of truth and honesty. Besides, the question of whether he possessed the necessary qualifications to render him competent to testify in the character of an expert was a preliminary one to*be passed upon by the court after the examination of the witness. [Rogers on Expert Testimony (2 Ed.), sec. 16, p. 39; Hills v. Home Insurance Co., 129 Mass. 345; Chandler v. Jamaica Pond Aqueduct Corp., 125 Mass. 544; Berg v. Spink, 24 Minn. 138; Howard v. Providence, 6 R. I. 516; Ardesco Oil Co. v. Gilson, 63 Pa. St. 146; State v. Arnold, 7 R. I. 586; Krippner v. Biebl, 28 Minn. 139; Steam Towboat Co. v. Starrs, 69 Pa. St. 36.] The weight of the testimony of this witness, like that of any other, was for the consideration of the jury.

It is said for defendant that the State should have accounted for the whereabouts of the stomach and intestines of the deceased from the time of the postmortem examination by Dr. Lebrecht, for the coroner, on the 11th day of November, 1906, to the afternoon of the 12th day of November next thereafter, when the viscera were removed from the body at the morgue by Keeton, the undertaker and embalmer. Nothing appearing to the contrary, it must be presumed that the body and viscera remained in the care of the keepers of the morgue, where the autopsy was held and the post-mortem examination made, until delivered' to the undertaker. There is nothing disclosed by the.evidence which could create the slightest suspicion', that they were tampered with. Nor does the fact that the viscera was placed by the embalmer in a galvanized bucket, which was not sterilized and which was used in washing dead bodies, indicate that this was wrong or improper. It is clear from the testimony of the witnesses who testified as to the custody of and manner of keeping the stomach and intestines that there was nothing improper or unseemly about it.

Defendant complains of the failure of the court to define certain words and terms used in the instructions, to-wit, “premeditatedly” and “malice aforethought.” If this were an ordinary case of murder in the first degree, the failure of the court to define said words and terms used in the instructions would be reversible error. This, however, falls within that clause of section 1815, Revised Statutes 1899, which provides that “every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.” In the ordinary case of murder in the first degree, such as may be committed by poison, or by lyiug in wait, or by any other kind of wilful, deliberate and premeditated killing, malice aforethought and premeditation are constituent elements of the crime, and should be defined, as has been many times held by this court. But where, as in this case, poison is administered, wilfully and deliberately, in the perpetration of a robbery, and death ensues, then such killing, under the provisions of section 1815-, supra, is murder in the first degree, and malice aforethought - and premeditation are not elements of the offense, and it was, therefore, unnecessary to define those terms. It appears from the evidence that the poison administered to the deceased by the defendant was not for the purpose of killing him, but to enable the defendant to rob him.

In State v. Jennings, 18 Mo. 435, the court gave the jury the following instructions:

“If the jury believe from the evidence that it was not the intention of those concerned in lynching Williard to- kill him, but that they did intend to do him great bodily harm, and that in so doing death ensued, such hilling is murder in the first degree, by the statute of this State.”

In passing upon this instruction, the court said: “The sixth instruction is correct under the statute of this State.....Homicide committed in the attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.” That decision was cited with approval in the case of State v. Green, 66 Mo. 648, in which the court also held that wilfulness, deliberation and premeditation, in a case where a person commits murder in the attempt to commit a felony, are not necessary elements of the offense under our statute. [State v. Hopkirk, 84 Mo. 278.]

In State v. Foster, 136 Mo. 653, it is ruled that in an indictment charging murder it is unnecessary to state that the murder was committed in an attempt to rob, but that the indictment may be in common form, and when proof is made that the homicide was committed in the perpetration of a robbery, such proof is tantamount to that premeditation, deliberation, etc., which otherwise are necessary to be proven in order to constitute murder in the first degree. The same rule is announced in State v. Hopkirk, supra; State v. Meyers, 99 Mo. 107, and State v. Donnelly, 130 Mo. 642. It follows that no error was committed by the court in failing to define premeditation and malice aforethought, for if it was not necessary to allege these things in the indictment it was unnecessary to define them. If the poison had been administered with the felonious purpose and intent of killing the deceased, it would be different, because, in that event, malice aforethought and' premeditation would be ingredients of the offense; not so, where the poison is administered for the purpose of robbery. As was said in State v. Meyers, supra, upon proof that the crime was committed in the perpetration of the robbery, this proof answered the ends of the prosecution and stood in the stead: of “malice aforethought” and “premeditation.”

It is further insisted that the court erred in failing to define the word ‘ ‘ corroboration, ’ ’ as used in instruction number 10. This instruction reads as follows:

“The court instructs the jury that the testimony of an accomplice in a crime, that is, a person who actually commits or participates in the crime, is admissible in evidence; yet the evidence of an accomplice in a crime, when not corroborated by some person or p.ersons not implicated in the crime, as to matters material to the issues, that is, matters connecting the defendant with the commission of the crime as charged against him, ought to be received* with great caution by the jury before they should convict the defendant on such testimony.”

This instruction is a literal copy of an instruction given upon the same question in State v. Harkins, 100 Mo. 666, and which has been frequently approved by this court since. [State v. Jackson, 106 Mo. 174; State v. Minor, 117 Mo. 302; State v. Crab, 121 Mo. 554; State v. Dawson, 124 Mo. 418; State v. Donnelly, 130 Mo. 642, and subsequent cases.] The instruction is full and complete within itself. Moreover, Brown, the accomplice, was thoroughly corroborated by other witnesses with respect.to matters to which he testified directly connecting the defendant with the commission of the crime. Two witnesses, a police officer and a bartender, testified to seeing the deceased, the defendant and Joe Brown in the Ohio saloon, drinking together on the same day the crime was committed. Theodore Young, a druggist, testified to seeing the defendant in his drug store about 6:55 o’clock that evening, and selling him ten cents worth of morphine. Joseph Crouse testified that the defendant, with another man, came to his pawnshop that night and sold him a hat, which hat had been identified as the one worn by the deceased. Officer Butler testified to finding the deceased in the vacant lot where, • as Brown testified, the deceased was left by the defendant and himself the night before. The testimony of these five witnesses strongly'corroborated and dovetailed into Brown’s testimony.

After the case was submitted to the jury and they had retired to consider of the verdict, one of their number sent to the court a note asking, in substance, if a wrong diagnosis of the disease from which Robert Harvey was suffering, and the treatment given him at the time and after he was received at the hospital, based on such wrong diagnosis, would affect the guilt or innocence of the defendant under the law. Upon receiving this inquiry, the court further instructed the jury as follows:

“Answering the inquiry propounded by a juror in this ease, which is hereto attached and made a part hereof to the end that this instruction may be more fully understood by the jury, the court further instructs you: That- if you find from the evidence, beyond a reasonable doubt, that the defendant wilfully and knowingly administered the poison of morphine to Robert Harvey, as in the other instructions fully defined, and that such morphine was so administered in a quantity sufficient to have brought about or caused the death of said Harvey, then the fact that after the administration thereof he may not, from any cause, have received proper medicinal treatment, or that the fact of his having been thus poisoned was not discovered prior to his death, will not relieve the defendant from liability in this case, provided the jury be satisfied from all the evidence, beyond a reasonable doubt, that said Harvey did die as a result of poison so administered.”

The objection interposed to-the giving of said instruction was, and is now, that it was given at the request of one juror, and that it is not complete or correct under the law and the facts. The defendant admits in his brief that additional instructions would have been proper had all the jury asked for them, but contends that as the court had already instructed on the point, the second instruction thereon gave it undue emphasis. There is no- merit in these contentions. In the first place, any one or more of the jurors had the right to ask further information and enlightenment from the court upon any question involved in the case which they were considering. In the next place, the instruction was not erroneous, but was a proper explanation of that which the juror desired to know.

It is further said for defendant that the court committed error in striking from the hypothetical question put to Dr. G-radwohl, an expert witness introduced by the defendant, the words “his mind was fairly clear, but his speech was thick and his articulation poor.” The words in question were a part of the testimony of Dr. Bevan, one of the physicians at the hospital who examined the deceased before his death and gave him medical attention. The court would not permit this statement to go into the hypothetical question, for the reason that Dr. Bevan had qualified it by other statements and explanations, and- the record shows that he did' so. For instance, in answer to the question if the patient (the deceased) had become somewhat rational after certain drugs had been administered to him, Dr. Bevan answered, “You cannot say rational, his mind was more active.” The expert witness also stated in his testimony that he had heard Dr. Bevan’s testimony. In any event, Dr. G-radwohl’s answer to the hypothetical question put to him was favorable to the defendant, for his opinion was that the deceased" did not' die from morphine poisoning, hut that his death was due to alcoholism, uraemia and exposure combined, and it is therefore clear that the defendant has no right whatever to complain.

A final contention is that the evidence is not sufficient to sustain the verdict. The record discloses no ground for such contention. Without repeating the evidence, which would serve no useful purpose, we can but say, after a careful consideration thereof, that it leaves no doubt whatever in our minds of defendant’s guilt.

Finding no reversible error in the record, we affirm the judgment and direct that the sentence pronounced by the trial court be executed.

All concur.


source: Caselaw Access Project

author: GRAVES, J. —

license: Public Domain

text:
    LEN WALKER v. F. T. MILLS, A. C. McKNIGHT, DON REAVES and LILLIE REAVES, his Wife, Appellants.
    Division One,
    April 1, 1908.
    1. TAX SALE: Purchase by Tax Attorney. The attorney for the county collector in a suit for taxes, has a right to purchase the land at the sheriff’s sale under the judgment, no issue of fraud or collusion being raised oy the pleadings.
    2. -: Inadequacy of Price: Pleading. Where the pleading pleads neither inadequacy of price nor fraud, collusion or unfairness, the court cannot set the sale in a tax suit aside because of inadequacy of price.
    3. -:-: Evidence of Unfairness. Where the evidence shows that after the sale in the tax suit was begun the sheriff and the purchaser (the attorney for the county collector) stopped the sale until tae attorney of the landowner could look up and talk to him and that his attorney did notify him of the pending sale and he directed the attorney to give notice that the sale would be void, because the judgment was void, which notice was given, after which the sale proceeded, there is no evidence upon which the sale could be set aside for unfairness or inadequacy of price, for if there was inadequacy of price the landowner contributed thereto.
    4. -: Judgment: Service of Process: Mortgagor and Mortgagee. A judgment for taxes against real estate may be valid as to part of the defendants and invalid as. to others. Long prior to the bringing of the tax suit, the mortgagor had turned the lots over to the beneficiary in the deed of trust, who was in possession, and he and the trustee, in whom was the legal title, were properly served with personal summons, and return as to the mortgagor was non est, and being a non-resident service by publication was made against him, and afterwards when he was in the county he wrote on the petition a waiver of service. Held, that the judgment was not void, but whatever interest the trustee and beneficiary had in the property passed by the tax sale and the purchaser took the title, whether the service on the mortgagor was valid or not.

      6. -: -: -: Waiver. Tlie waiver of service by tbe mortgagor on tbe petition, instead of upon tbe summons attacked thereto, was only an irregularity, and would not subject tbe judgment to collateral attack, even by bim. Nor bas tbe mortgagee, if bis interests bave legally passed by tbe judgment and sale, tbe right to invoke tbe aid of courts in tbe mortgagor’s behalf.
    Appeal from Greene Circuit Court. — Now. Jas. T. Ne-ville, Judge.
    Affirmed.

      John Schmook for appellants.
    (1) No person can become a purchaser at a judicial sale who has a duty to perform in reference thereto which is inconsistent with the character of purchaser or who is so connected with the sale that his individual interest as a purchaser might be inconsistent with his duty. 24 Cyclopedia Law and Evidence,' p. 29; Grumley v. Webb, 44 Mo. 451; McCelvey v. Thompson, 7 S. C. 185; Manning v. Hayden, Fed. Cas. No. 9043. (2) The purchase at a sale for delinquent taxes, directly or indirectly, by officer conducting, directing or controlling the sale, is invalid. Sponable v.' Woodhouse, 48 Kan. 173; Ellis v. Peck, 45 Iowa 112; Chandler v. Moulton, 32 Yt. 245; Burke v. Daly, 14 Mo. App. 548; Thornton’ v. Irwin, 43 Mo. 163. If a person selling land becomes himself the purchaser, or has any understanding at the time of the sale that he is to have any interest in the purchase, it is invalid. Ayers v. Blair, 26 W. Ya. 558. The fact that Walker’s fees as tax attorney had to be paid out of the proceeds of the sale; that he directed the sale; that he became purchaser at the sale for a grossly inadequate price, renders same a nullity. Teel v. Yancey (Va. 1873), 23 G-ratt. 691; Patterson v. Josselyn, 43 Miss. 373; Hamblin v. Warnecke, 31 Tex. 94; Boyd v. Blank-man, 29' Cal. 34; Stopp. v. Tloer, 3 Bibb. 450; Dwight v. Blaokmar, 2 Mich. 330; Crayton v. Spullock, 13 S. E. 561; Kreitzer v. Crovatt, 21 S. E. 585. (3) Where the attorney purchases, only slight additional facts are required, in connection with inadequacy of price, to render sale a nullity. Howell v. McCreery, 37 Ky. 388; Busey v. Hardin, 41 Ky. 407. And where the attorney to some extent has power over the sale, he will not be protected in the purchase of the property at a sacrifice. Smith v. Thompson, 46 Ky. 305; Burke v. Daly, 14 Mo. App. 542. (4) The attempted constructive service, based on the non est return, in the tax suit, is void for the reason that said return was premature, the summons having been issued in June, returnable to the September term, and being returned the same month it was issued. Brown v. Cummings, 181 Mo. 711.

      W. D. Tallow for respondent.
    (1) The court acquired jurisdiction over the person of Reaves as well as the other defendants, for he expressly waived the issuance of summons and accepted service thereof in writing. Sec. 571, R. S. 1899. The waiver was endorsed on the petition instead of the writ. It, however, was in writing; it was signed by his own proper signature, concerning which there was no question, and at most it was a mere irregular service. It is elementary in this State, and wherever the English common law applies, that judgments can not be collaterally attacked for irregularities, either in the judgments themselves, the antecedent pleadings or proceedings, or the service of process. Perryman v. State, 8 Mo. 208. (2) A judgment is good as to those parties who were personally before the court, although void as to parties not served, appearing in or .waiving service. State ex rel. v. Tate, 1Ó9 Mo. 265; Noonan v. City, 126 Mo. 89'; Pacific Ex. Co. v. Emerson, 101 Mo. App. 63; Lovitt v. Russell, 138 Mo. 474. Under the facts the legal title was vested in Delaney, trustee for the beneficiary, Mills, so that they could have maintained ejectment. Johnson v. Houston, 47 Mo. 227; Reddick v. G-ressman, 49 Mo. 389; Wendover v. Baker, 120 Mo. 294; Schanewerlc v. Hoberecht, 117 Mo. 22; Adams v. Carpenter, 187 Mo. 634. (3) The point is made that the tax judgment should have been for a specific amount against each lot, and should have stated the amount so recovered on each lot separately. This may be so; however, the appellant, Mills, should have appeared in the tax suit and made this suggestion to the court, which would, no doubt, have acted upon his suggestion and made the judgment conform to his taste. However, such irregularity does not, in any way, affect the validity of the judgment. Jones v. Driskill, 94 Mo>. 190. (4) Plaintiff was entitled to purchase at the tax sale. Walcott v. Hand, 122 Mo. 621; Board v. Pry, 192 Mo. 556; Giraldin v. Howard, 103 Mo. 41; Reddick v. Gressman, 49 Mo. 389; Thornton v. Irwin, 43 Mo. 153; Allen v. Ransom, 44 Mo. 263; Gaines v. Allen, 58 Mo. 537.
   GRAVES, J. —

Action under section 650, Revised Statutes 1899, to declare title to two lots in the city of Springfield. Petition in the usual form. Separate answer by defendant Mills is, first, a general denial. Secondly, it is claimed that the appealing defendant, Mills, is the holder of, or beneficiary in, a deed of trust on said property which was given by one Don Reaves in 189-9 and which has not been satisfied and that the said Reaves was the owner of the lots. Thirdly, it is averred that plaintiff procured his pretended title in a certain tax proceeding by the Collector of Greene County v. F. T. Mills, T. J. Delaney and Don Reaves, in which plaintiff was tax attorney representing the collector; the remainder of the third count and the fourth count is in this language:

“That said judgment was and is void and of no effect because this court never had nor acquired jurisdiction of said defendants to render said judgment by reason of the failure to' serve process upon said defendants as by law required, and because said judgment does not recite the amount of taxes and interest due upon each of the lots.
“For further answer defendant says that he tendered and offered to pay said taxes and costs of said tax suit prior to the date of said judgment, all of which facts were well known to plaintiff prior to said tax sale.”

The other two defendants filed no answer. Reply was general denial.

Upon a trial the defendant Mills requested by proper motion a finding of facts, which was made by the court as follows:

“On February 28, 1900, the Collector of Revenue for Greene county filed suit against defendants Mills, Delaney and Don Reaves for taxes on the property in controversy, June 18th, 1901, summons issued against all; Mills and Delaney were served, Reaves was not. The summons was returned before the return day, Reaves ‘not found.’ Publication was afterwards ordered to the September, 1902, term for Reaves. Same was duly published. Afterwards and before judgment Reaves wrote on the petition the following attempted waiver of process and service: ‘I hereby waive the issuance- of summons in the above-entitled cause and 'accept service hereof. ' Don Reaves, defendant.’ Judgment was afterwards rendered and the land sold in bulk, but for less than the amount of taxes. Mills was all of the time the real owner and in possession of the property, having taken possession as such by consent of Reaves. . Plaintiff bought at the sale.
“I hold the proceedings valid as against Mills and that plaintiff is the legal owner by virtue of said purchase. Default as to Reaves.”

Then follows the judgment which is elaborately written and contains therein a more explicit finding of facts than the one made by the court hereinabove set out. Defendant’s motion for new trial having been overruled, he duly perfected his appeal. Further statement of the facts will be given in the disposition of the points made.

I. It appeared from the evidence that the plaintiff was attorney for the collector at the time the tax proceeding was begun, but was not really tax attorney • for the collector in office at the time of the sale. He had however looked after all the cases brought by him while acting for the collector who appointed him and this case with the others. Defendant contends that the attorney for the collector has no right to purchase at a tax sale. There are many respectable and forceful cases holding .that a public officer whose duty it is to collect taxes cannot purchase at such sale. Such, however, is not the rule in Missouri. [Walcott v. Hand, 122 Mo. 621; Turner v. Gregory, 151 Mo. l. c. 106.]

In the latter case, this court said: “As to the other contention, that the sheriff’s deed to Oscar Reeder was void because Reeder was the collector who brought the suit, we have ruled otherwise in Walcott v. Hand, 122 Mo. 621, to which we still adhere.”

If the collector can purchase at such sale there is no good reason to, assign why his attorney could not likewise purchase. There was no issue of fraud, collusion or anything of that character charged in the answer. So that upon the single question of the right of the plaintiff to purchase at the tax sale, under our cases, we must hold that he had such right and this contention is ruled against defendant.

II. It is next urged that there is inadequacy of price in such sale, and that this, when coupled with slight additional facts, will authorize the court to set aside a sale. It is true that where there is a gross inadequacy of price, coupled with some evidence of fraud or unfairness, an execution sale may he set aside under the authorities in this and other states. It would he sufficient for this contention to say that the answer in this case neither pleads inadequacy of price nor fraud, collusion or unfairness. There is not a word in the answer that would authorize a court to enter a judgment upon such question, if we recognize the rule that the judgment must accord with the issues made by the pleadings. But beyond this there is no evidence in this record that would authorize such action upon the part of the trial court. The evidence shows that after the sale was begun the plaintiff and the sheriff stopped the sale until an attorney for defendant Mills could look up and talk to Mills and that such attorney did notify. Mills of the pending sale and that Mills directed him to give notice that the sale would be void, because the judgment was void, which notice was given, after which the sale proceeded. Even if there were gross inadequacy of price the defendant by his conduct contributed thereto. In addition he had full personal notice of the sale at the time and prior thereto and cannot now complain. This point is ruled against defendant.

III. An other contention is that the judgment for taxes should have been for a specific amount against each of the two lots involved, and should have stated the amount recovered for each of the two years therein sued for and adjudged. This exact question was fully answered by Brace, J., for this court in the ease of Jones v. Driskill, 94 Mo. l. c. 199, and we are satisfied with the ruling there made. Judge Brace said:

“The remaining objection to the validity of the judgment, that the same was not against each tract separately for the amount found to be due on such tract, is answered by the cases of Gray v. Bowles, 74 Mo. 419, and Brown v. Walker, 85 Mo. 262, 11 Mo. App. 226. Although the judgment for that reason may be erroneous and subject to correction on error or appeal, it is not void, and having been rendered by a court having jurisdiction of the person and subject-matter, the title of a purchaser of property bought at execution sale under such judgment is not affected by such error.”

This contention is therefore ruled against the defendant.

IY. It is next contended that the tax judgment is void because there was no proper service upon the defendants. When boiled down the real contention is that defendant Reaves had not been served. The record shows personal service upon Mills and Delaney, and shows^that the summons was returned before the return day, with non est as to Reaves, and upon this non est return, order of publication was made as to Reaves, who was in fact a resident of Denver, Colorado. It also shows that after the publication and before the term at which judgment was taken Reaves was in Springfield upon a visit and while there signed the waiver of service set out in the finding of facts. The evidence conclusively shows that in 1899, Reaves, being unable to further pay on the deed of trust held by Mills, turned the property over to Mills, and that Mills thereupon conditionally sold it to A. O. McKnight, a defendant in the present case, agreeing to make him a warranty deed when he had paid for the same, and under this agreement McKnight had paid and Mils had received about four hundred dollars of the agreed price of six hundred dollars. Reaves has ever afterwards acquiesced in'Mills’s claim of ownership and even defaults in this case.

' As to how Mills came into possession of the property is best shown by his admissions on the trial and to McKnight with whom he had a conditional contract of sale. "While on the stand among other things, he said:

“Q. Now, Don Reaves turned this property over to you in 1899?' A. Yes, sir.
“Q. In 1899? A. No.
“Q. "Well, before you turned it over to Mr. McKnight? A. He turned it over perhaps in 1898.
“Q. Now, what was the agreement at the time he turned it over to you? A. Oh, he just simply says, ‘I can’t pay; take the property.’
“Q. Under the deed of trust? A. Yes.
‘ ‘ Q. He was to give you a deed? A. That was all; simply take the property.
■ “Q. Did he give you a deed at that time for the property? A. No, sir.
“Q. He gave you possession of the property under your deed of trust? A. Yes.”
McKnight as a witness said:
“Q. He told you about the Don Reaves incumbrance, and you talked about the expense of foreclosing the deed of trust and getting title? A. No, he said Don Reaves had turned the title over to him and .everything was in his hands, and that that was all right, and' I told him that I would like to have it so he could make me out the deed to the place and make out my notes and he said it wasn’t necessary to- go-to all "that expense, and I told him something might happen, and I says I would rather have it that way.
“Q. "What did he tell you about the Reaves deed of trust, about the amount of it? A. He told me that was all settled, that Don Reaves had turned it over to him.
“Q. "What did he tell you about the amount of the incumbrance? A. He didn’t tell me anything about any incumbrance.
“Q. Then, you went into possession in March, 18991 A. Yes, sir.”

The evidence also discloses default as to the deed of trust long prior to the time the property was turned over by Reaves with the statement, “I cannot pay; take the property.” Mills then and there took possession, and afterwards made the conditional sale to McEnight,d. e., that if he would pay interest and taxes and six hundred dollars, he would make him a warranty deed upon snch payment.

The legal title at the making of the deed of trust was vested in Delaney. [Schanewerk v. Hoberecht, 117 Mo. 22; Adams v. Carpenter, 187 Mo. l. c. 634.] In addition to this we have the property actually turned over to the beneficiary and in his possession long before the service of process upon him and Delaney in the tax proceeding. These two parties were legally served, and-whatever interest they had passed by the tax sale. And this although there was no valid service upon Reaves. Such a judgment may be valid as to part and invalid as to the others. The precise question in a tax judgment was considered in the case of Neenan v. St. Joseph, 126 Mo. 89, wherein we said:

“The spirit of the law has been greatly changed and modified by the code-, and the later decisions, following this spirit, have reached the conclusion that a judgment is not to be regarded as an entirety in the sense of not being amendable or subject to correction, as to one of the parties, unless the substantial rights of the others would be injuriously affected thereby. [State ex rel. v. Tate, 109 Mo. 269’, and cases there cited and reviewed; Bensieck v. Cook, 110 Mo. 183.] That we take to be the true rule.
“There only remains for determination in this case the question whether the other defendants, who are not complaining, would be unfairly prejudiced by vacating the judgment as to the minor defendant, who is complaining.
“A judgment in these statutory suits for taxes is strictly one against the property alone-, and does not bind the parties further than it may affect their interest in the property itself. Yet, unless one having an interest in the land is made a party to- the suit, his interest is not affected by the judgment. [Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 524.]' The only effect the order vacating the judgment as to one defendant could have on the rights of the other defendants would be to charge the entire taxes upon their interest. The same effect would result should one owner be entirely omitted from the suit and judgment, yet the judgment in that case would be good, and would bind the interest of those made parties for the entire tax. [Allen v. McCabe, supra.]
“The policy of the revenue law is to charge the land and every interest therein with the delinquent taxes, and not to look to the owners, personally, for its payment. It leaves the owners, whose interests' may be complicated, to adjust their rights among themselves. It is the duty of each owner, as between himself and the State, to pay the taxes charged against the land, and the law advises- him that a neglect of that duty will render his interest subject to sale therefor. Such being the policy, as well as the letter, of the statute, we are unable to see that the other defendants can-complain, after judgment, that the interest of one of the parties was not bound by the judgment. The judgment, as amended, would only require what the law before judgment required, viz., the payment of the tax charge upon the land.”

But beyond this the tax judgment went against Reaves both upon the order of publication and the waiver of service hereinabove described. We shall not discuss the publication, but in our judgment the acknowledgment of service made in writing on the petition, instead of the summons attached' thereto, by the defendant Reaves, is only an irregularity and would not subject the judgment to' collateral attack, even by Reaves. [Perryman v. State to use, 8 Mo. 208.] In this case Reaves not only acquiesced in the tax judgment, but he further continued to acquiesce therein by making default in the present case. Nor has the defendant Mills, if his interests have legally passed, the right to invoke the aid of the courts for Reaves.

It might be stated, however, that whilst the validity of the service upon Reaves is squarely raised in the record, as.first above indicated, it is not pressed in the able brief of counsel, but seems to have been practically abandoned.

Y. There, is also some claim made that there had been a payment of the tax judgment by Mills prior to the sale and that Walker had knowledge of such fact. This contention is not borne out by the evidence. -The weight of the evidence is otherwise.

Upon the whole this case was fairly tried and determined. The judgment is therefore affirmed.

All concur.


author: LAMM, J. —

text:
    PINKIE HILER et al. v. SILAS R. COX et al.; SILAS R. COX, Appellant.
    Division One,
    April 1, 1908.
    1. TITLE: Finding of Court. Where the whole issue in a. partition suit tried, to the court sitting as a jury, was whether a certain lost unrecorded deed conveyed property to a husband or his wife who survived him, the appellate court will not interfere with the court’s finding, if the evidence admitted was competent under the pleadings, and that rejected incompetent.
    2. PARTITION: Consent to Sale: Reversal of Judgment. Where all parties, after judgment in partition in favor of plaintiffs finding that the land belonged to the coparceners’ father and not to their mother, consented that the land should be sold, and the costs paid and the balance of the proceeds except $600 should be distributed, and that that $600 should be held to pay a debt which their mother owed defendant in case the judgment in that respect should be reversed, the judgment cannot be reversed in its entirety. Thereby defendant destroyed any issue on appeal going to the validity of the judgment.
    3. EQUITABLE TITLE: Lost Unrecorded Deed. Where the deed was delivered, followed by actual possession, and was after-wards destroyed by fire without ever- having been recorded, and the whole issue is whether coparceners’ father or mother was the grantee, the title of neither was an equitable one. The record of a deed does not create title, and the purpose of the action iS not to vest a record title in plaintiffs or defendants or to remove a cloud upon their title, but is simply an issue of fact, namely, who was the owner of the legal title?
    4. -: Estoppel: Consent to Sale Under Partition. In such case, appellant by consent of record to a sale of the land under judgment in partition, after judgment rendered for respondents, waived the right on appeal to make the point that the said destroyed deed which had never been recorded conveyed an equitable title.
    5. TITLE: Lost Deed: Parol Evidence as to Grantee. A deed was made by Joseph East, the owner of the land, in 1849, and delivered, and coparceners’ father and mother moved into possession. In 1864 he died, and in 1875 the deed was destroyed by fire, having never been recorded. The widow lived on until four years before this partition suit was brought, in which the issue is wLether the father or mother was the grantee, she being indebted to defendant at the time of her death. BeliX-, that testimony by parties who saw the deed that the conveyance ran to the father was competent evidence, as also was the inventory of his estate, filed by his administrator in 1865, which listed the land as his and described it by numbers and as “held by deed from Joe East.”
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      Charles Martin for appellant.
    (1) Upon the issue made- by the petition and answer plaintiffs must show legal title to- the land.McCabe v. Hunter, 7 Mo. 355; 3 Pomeroy, Equity, sec. 1388. The statutory mode, of partition, such as this is, does not include equitable jurisdiction of the subject. Spetts v. Wells, 18 Mo. 468; Rosin v. Griffith, 31 Mo. 171; Bradshaw v. Tate, 67 Mo-. 233; Dameron v. Jamison, 71 Mo. 97; Holloway v. Holloway, 97 Mo. 628; Reed v. Robertson, 45 Mo. 580. (2) Plaintiffs did not show legal title to the forty acres in dispute, but were permitted by the court, over defendant’s objection, to attempt to prove the contents of a deed which was lost or destroyed in 1872, without being recorded. The title or right under a lost or destroyed deed not recorded cannot be established at law, except under the provisions of article 4, chapter 59, Revised Statutes 1899, but can be established by a proceeding in equity. Wyman v. Cory, 43 Mo. 301, 48 Mo. 348; Bohart v. Chamberlain, 99 Mo.- 622; Mason v. Block, 87 Mo. 329; Ins. Co. v. Smith, 117 Mo. 297. (3) Before the contents of a lost or -destroyed deed or other instrument of writing can be proved by secondary evidence, the due and formal execution of the deed must be proved. Perry v. Roberts, 17 Mo-. 36; Attwell v. Lynch, 39 Mo. 519; Hunt v. Selleck, 118-Mo. 588; Shea v. Seibig, 8 Mo. App. 146; Zollman v. Tarr, 93 Mo. App. 234; Hollman v. Backus, 24 Mo. App. 629.

      Norton, Avery & Young for respondents.
   LAMM, J. —

This is a suit to partition real estate in Lincoln county. The petition alleges that plaintiffs and defendants are the owners of, and tenants in common in, ninety-four acres of land (describing it) in two tracts — one of forty and the other of fifty-four acres. That certain of plaintiffs and defendants are each entitled to an undivided one-seventh thereof. That certain of defendants are each entitled to an undivided one ^forty-ninth thereof, subject to a dower interest in another defendant. It is not alleged who the ancestors of these parties were, or how their title originated. It was alleged that the land could not be partitioned in kind, equitably, and a decree of partition and order of sale were prayed.

Defendant Silas R. Cox filed a general denial and alone appeals from a decree partitioning the land as prayed in the petition.

At the trial it was shown that certain of plaintiffs and defendants (including Silas) were children and heirs of James R. Cox and Eliza Cox, his wife, both deceased and both dying intestate. That certain of the defendants were the children of James Cox, a deceased son of James R. and Eliza. That one of the plaintiffs, Colbert, had purchased the interest of John W. Cox, another son of James R. and Eliza.

On all hands it is agreed that the title to the" forty was in James R. Cox at the date of his death in December, 1864. There is no dispute as to the names of the heirs of James R. and Eliza Cox and it appears they are all parties litigant. The only issue at the trial was whether the fifty-four-acre tract belonged to James R. C'ox or to Eliza, his wife. It appears the land would descend to the same heirs with the same undivided interest in each whether it belonged to the father or the mother — the heirs and the tenancy in common being the same either way. The mother died some four years before the partition suit. As we gather, she owed her son, Silas, a certain amount. If she owned the fifty-four-acre tract, then her title would descend subject to the payment of that debt — an administration of her estate being pending. .On the contrary, if she held a life estate, as dowress or otherwise, then, that life estate falling in, the heirs of James R. Cox take title by descent cast and Silas loses his debt.

It is agreed, further, that the title to the fifty-four acres, was originally in one Joseph East. That he conveyed it in 1849 or 1848 to either James R. or Eliza. There is no question but what this deed was made and delivered. All parties claim under it. It was in the possession of James R. until his death in 1864. It remained in the possession of his widow, Eliza, and of the family afterwards until the year 1875 when it was destroyed by a fire burning the family residence, and never was put of record.

Plaintiffs put in proof tending to show that James R. Cox was grantee in that deed. The defendant Silas introduced evidence tending to show that Eliza Cox was grantee in that deed.

Appellant objected to plaintiffs’ testimony on that score. If, now, plaintiffs’ evidence was competent under the pleadings, the judgment was right. If not competent, the judgment may be wrong. The case was tried as a law case to the court sitting as a jury on an issue of fact and we ought not to disturb the finding of the lower court, on review, on the mere weight of the testimony, though in this case it may with propriety be said that the testimony was strongly in favor of plaintiffs ’ theory and the finding, 'nisi.

No instructions were asked or given. No finding of facts was asked or made. If, then, on any possible allowable view the judgment can be sustained, it should be.

I. The judgment in partition provided that the land should be sold and that the proceeds, after paying costs, should be distributed between the plaintiffs and defendants in accordance with, their respective interests as therein set out. When the motion for a new trial was overruled, the following modification of the judgment was made by consent of all parties, to-wit:

“And the parties being in court consent and agree that* inasmuch as the heirs of James R. Cox and the heirs of Eliza Cox being the same and the only contention by the defendant being that the land in controversy is subject to the debts of said Eliza Cox, and that the sum of six hundred dollars will be sufficient in any event to meet any and all liabilities against the estate of said Eliza Cox, they agree that notwithstanding such appeal the said real estate may be sold as in the order of the court heretofore made and that all of the proceeds of said sale except the sum of six hundred dollars be distributed. It is therefore ordered by the court that notwithstanding such appeal of said Silas Cox that said land be sold and all the proceeds thereof except six hundred dollars be distributed and that the sheriff will from'the proceeds of said sale pay over to H. W. Perkins as trustee the sum of six hundred dollars to be held by him until such appeal be determined and that said H. W. Perkins as such trustee be required to give bond in the sum of twelve hundred dollars to hold and account for said $600 according to the further order of the court.”

It appears also that on the heels of that modification of the judgment it was executed by a sale, a report of sale, approval of the report and an execution of a deed to the purchaser. In this condition of the record, it is obvious that appellant waived his right to have the judgment, as an entirety, reversed.. If an appellant pays oft a money judgment or consents that a judgment be executed and agrees to abide the execution of the judgment, then by that act he “kills” any issue on appeal going to the validity of the judgment itself. [Wait v. Railroad, 204 Mo. l. c. 505, et seq.] If we reversed this judgment we would cut away the grounds upon which the partition was made. By-so doing we would undo what appellant consented should be done, to-wit, that partition be made. This we ought not to do at the instance of the consenting appellant. What appellant knit, shall we unravel? If he bind, shall we loose-^-thereby making discord out of concord? Therefore, this 'controversy seemingly has changed from a question of the right to partition, and a controversy involving title to real estate, over into a mere question relating to the right to $600 of money arising from the sale. In view of this, it is doubted whether the title to real estate is any longer directly involved-. It seemingly becomes a mere incident to the main question. There being a doubt as to the title to real estate being involved, on that doubt a question arises, viz.: Has this court jurisdiction?

The case was appealed to the St. Louis Court of Appeals and by that court certified to this court, presumably on the theory it’involved title to real estate. Counsel have not raised the question of jurisdiction and, leaving that question with the doubt indicated, we shall proceed (somewhat as a matter of grace) to dispose of the case on its merits, out of respect to the opinion of our learned brethren of the St. Louis Court of Appeals, who (being without doubt) hold the case belongs here.

n. Appellant insists the action is not for equitable partition, but is merely a statutory partition. That, under the issues, it is a law suit as distinguished from a suit in equity. This proposition may be conceded. From that proposition as a premise, appellant draws the conclusion that the title is an equitable one, if any (because the East deed was not recorded) and should have been tried out in chancery under a bill making the proper allegations. But this contention is without substance in this particular case, because any right Silas might have to the $600 is infected with the same vice, if vice it be. If Silas ’ theory is right then his mother only held an equitable title because (the deed being one and the same in either case) her deed was not recorded. If plaintiffs did not plead an equitable title, no more did Silas set up an equitable title in the mother, by his answer, and ask affirmative equitable relief. So, if the title of James R. Cox, if any, was an equitable one and hence plaintiffs are' to be cast, then, by the- same token, Silas must be east, too, and we would have the anomaly of a partition of real estate, a sale and a conveyance made irrevocable by consent, and yet the court is stripped of all power to dispose of $600 of the proceeds. We hold that Silas R. Cox by agreeing to the sale and the partition, waived the right to make the point.

But is the title of James R. Cox, if any, an equitable one? And is the title of Eliza Cox, if any, an equitable one? We think not. Obviously, this is not a suit to establish a lost deed and spread a title of record! It is not an action against the heirs of Joseph East to' vest the record title out of them and' into the heirs of James R. and Eliza Cox, or to remove a cloud from the title. In this case it stands conceded that a deed was executed by delivery. That possession was taken, and that not only title was conveyed by the deed to some one, but that by the adverse and peaceable possession of a half a century the Statute of Limitations had created legal title in the C'ox heirs as against the East heirs. Whether that legal title was vested in the Cox heirs by the Statute of Limitations or by the destroyed deed is of no consequence whatever, so long as it was vested. A deed speaks by delivery. The record of a deed does not create title— it merely imparts notice of the title. As between the parties, the deed is good without recording. [R. S. 1899, sees. 924 and 925.] The question narrows itself down to one of mere fact, to-wit, who was the grantee in that deed? It is familiar learning that an equitable title in plaintiffs cannot be tried out in straight ejectment, and yet it is common practice to prove a lost deed or title by limitations in straight ejectment. [Nelson v. Brodhack, 44 Mo. 596; Wall v. Shindler, 47 Mo. 282; Donaldson v. Williams, 50 Mo. 407; Bank v. Evans, 51 Mo. 335; Ridgeway v. Holliday, 59 Mo. l. c. 447; Fulkerson v. Mitchell, 82 Mo. l. c. 20, et seq.] The reason underlying the foregoing cases is that the title is a legal title although evidenced by a lost or destroyed deed or although created by the Statute of Limitations.

III. Plaintiffs were allowed to' introduce testimony tending to prove, by parties who saw the deed, that the conveyance ran to James R. Cox, as grantee. They were allowed to introduce the inventory filed by the administrator of James R. Cox’s estate in 1865. This inventory describes the land in dispute, as follows : “53 acres of land being the southwest quarter of the northeast quarter of section 31, township 49, range 1 west, held by deed from Joe East.” Appellant objected to the parol testimony and to the inventory. We think neither objection is good. The proof being that the deed was destroyed and that it was unrecorded, a status of things was shown permitting the introduction of secondary evidence. The parol testimony was, therefore, admissible and the inventory was admissible. By section 69; Revised Statutes 1899', it is made the duty of an administrator to inventory the real estate of the deceased, describing the quantity, situation and title of such real estate. A presumption may be indulged that the administrator performed this duty. He, and the witnesses to the inventory, had access to the deed and when, for the purposes of the law, they wrote into the inventory that James R. Cox held title to the disputed land and that his title came by a deed from Joseph East, the law in an emergency may use the information it caused to- be preserved for its own purposes. It may lay hold of this information in the absence of better. The trial court ruled correctly on its admissibility.

As we cannot disturb the judgment on our views of the weight of the testimony, and as there are no other questions raised materially affecting the merits, we affirm the judgment. Let it be so ordered.

All concur.


author: VALLIANT, P. J. —

text:
    AMANDA STETZLER v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    April 1, 1908.
    1. PRACTICE: Competency of Physician: Sending Jury Out. Where defendant calls plaintiff’s physician and the question of his competency is raised, it is a wise and judicious course of procedure for the trial court to direct that the jury be sent out and that defendant in their absence ask him such questions as he intends to ask when the jury is recalled, with the view of enabling the court to judge of the competency of the evidence.
    2. NEW TRIAL: Discretion: Conduct of Counsel. An appellate court is reluctant to interfere with the exercise of the judicial discretion of the trial court to grant a new trial, especially where the case turns on the weight of the evidence or the conduct of counsel during the trial.
    8. -: Misstatement of Evidence by Counsel. Plaintiff sued the defendant street railway company for the negligent starting of a car while she was in the act of alighting therefrom, and testified that as she got her foot in the air ready to step off, the car started with a jerk and threw her off. In the absence of the jury, plaintiff’s physician, in answer to inquiries by the court, stated that plaintiff had said to him that she attempted to get off of defendant’s car, and just as she was doing so a young man with a suitcase who was in a' hurry to reach a train brushed against her and she fell from the car. Defendant’s counsel than stated what he proposed to show by this witness, but his statement related only to the physical condition in which the witness found plaintiff after the accident and during his treatment of her, and made no reference to what the plaintiff said to the witness about the accident, and when the jury was recalled the inquiry was along the line indicated by the statement, and the physician was not asked in regard to anything the plaintiff said to him about the accident or how it occurred. In his argument to the jury defendant’s counsel upbraided plaintiff for not putting this witness on the stand and stated the reason why she had not done so was that “they knew that he would testify, as he has testified in this case, that the plaintiff told him that she had been pushed off the car by a young man with a suitcase.” The physician had not made any such statement before the jury, and plaintiff’s counsel promptly objected and excepted to the refusal of the court to reprimand defendant’s counsel and to instruct the jury that there was no such testimony. The trial court held that defendant’s counsel, had misstated the evidence in this regard, and granted plaintiff a new trial because of such misstatement, etc. Bel&, that the misstatement was significant, and the granting of a new trial under the circumstances was peculiarly within the judicial discretion of the trial court, and the appellate court would not be justified in holding that the court committed error in granting a new trial.
    4. INSTRUCTION: Interest of Plaintiff as Affecting her Credibility: Civil Case. The interest that a witness has in a civil suit may be shown, to be considered by the jury in weighing her evidence, but when that fact is shown the jury should be left to exercise its own discretion as to the weight to be given to her testimony. The court has no right to single out a particular witness, whether she be a party to the suit or not, call the jury’s attention to her interest in the suit as an inducement ■ liable to cause her to give false testimony, and tell them to be careful how they 'give credence to what she has said. So that it was error to instruct the jury that “in determining what weight and value you will give to plaintiff’s testimony, you may take into consideration, with all the other facts and circumstances before you, the fact that she is the plaintiff testifying in her own behalf and her interest in the result of the suit. Whatever statements, if any, she may haye made against her own interest must be regarded as true; what she may have said in her own favor is to be taken as true or false as you may believe it to be true or false,” etc.
    5. -: -: Thoughtless Admissions. This instruction is further erroneous in telling the jury, in effect, that whatever admissions fell in thoughtless or careless conversations from the plaintiff’s lips are to be taken as true, if against her interest, while everything she may have said in her own behalf must be scrutinized with care.
    6. -: Contributory Negligence: No Evidence. 'Where there is no evidence that plaintiff was guilty of negligence in getting off the car, no instruction on the subject of contributory negligence should be 'given.
    Appeal from Jackson Circuit Court. — So». John G. Park, Judge.
    Affirmed.

      John H. Lucas, Ben F. White and F. G. Johnson for appellant.
    The court erred in setting aside the verdict and granting a new trial to plaintiff. Noble & Ware v. Mitchell (Ala.), 25 L. R. A. 238; Roose v. Roose, 145 Ind. 482; Busche v. Scully, 107 Ind. 246; Obert v. Strube, 51 Mo. App. 621.

      C. E. Burnham, Kelly, Brewster & Buchholz and W. E. Burnham for respondent.
    (1) The court did not err in setting aside the verdict and granting a new trial to the plaintiff. Norton v. Railroad, 40 Mo: App. 642; McDonald v. Cash, 45 Mo. App. 66; Ritter v. Bank, 87 Mo. 576; Evans v. Town of Trenton, 112 Mo. 390; Ensor v. Smith, 57 Mo. App. 584; State v. Barham, 82 Mo. 67. (2) The trial court erred in permitting Judge Johnson during the trial of the case to argue to the jury that plaintiff had told Dr. Boarman that she had been knocked off the car by a young man with a suitcase. Thompson on Trials, secs. 958 and 969; Marble v. Walters, 19 Mo-. App. 135. (3) The court erred in failing and refusing to reprimand Judge Johnson for arguing to the jury that plaintiff had told Dr. Boarman that she had been knocked off the car by a young man with a suitcase. Messengale v. Eice, 94 Mo. App. 430. (4) The court erred in permitting Judge Johnson to repeat said argument before the jury and in failing and refusing to reprimand counsel for repeating said argument to the jury. Gibson v. Zeibig, 24 Mo. App-. 65; Tucker v. Hanniker, 41 N. H. 317. (5) The court erred in refusing the plaintiff’s request that the stenographer’s notes of Dr. Boarman’s testimony be read in order that it might be ascertained whether or not he did testify that plaintiff had told him she had been knocked off the ear by a young man with a suit-ease. (6) The court erred in giving defendant’s instruction 7 over the objection and exception of the plaintiff. Sheperd v. Eailroad, 189' Mo. 363; Cafferatta v. Cafferatta, 23 Mo. 235-; Montgomery v. Eailroad, 181 Mo. 477; Conner v. Eailroad, 181 Mo. 415; Zander v. Eailroad, 103 S. W. 1006. (7) This court should sustain the trial court in granting a new trial if there is any error in the record. Hewett v. Steele, 118 Mo. 463; McShane v. Sanderson, 108 Mo. 316; Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 258; Bank v. Armstrong, 92 Mo. 265; Lovell v. Davis, 52 Mo. App. 342. (8) The burden is upon appellant to show that the trial court abused its discretion in granting a new trial. Eidemiller v. Hump, 61 Mo. 340; McCollough v. Ins. Co., 113 Mo. 606; Kennedy v. Holladay, 105 Mo. 24; Bank v. Wood, 124 Mo. 72; Kick-road v. Martin, 43 Mo. App. 597; Hewett v. Steele, 118 Mo. 463. (9) The action of the trial court in granting a new trial will be sustained by the appellate court if it can be done upon any of the grounds set out in the motion for that purpose, even though the grounds upon which it was granted had been entered of record and notwithstanding the court may have given a wrong reason for sustaining the motion. Hewett v. Steele, 118 Mo. 463; McShane v. Sanderson, 108 Mo. 316,
   VALLIANT, P. J. —

This is a suit for damages for personal injuries alleged to have been received by the plaintiff as the result of the negligent starting of a street car on which she was a passenger while she was in the act of alighting therefrom. The only witness for the plaintiff to the accident was the plaintiff herself; her testimony was to the effect that she was a passenger on the car, it stopped at the intersection of Ninth and Main streets to allow passengers to alight, that she was in the act of getting off the car, had gone out on the rear platform, had stepped down on the lowest step of the car, “I got my foot in the air ready to step off, and the car went with a jerk and threw me.” She stated that there were two men getting off the car at that time, one was a young man with a grip, he had asked the conductor about going to the Union Depot and when the car stopped he got off before plaintiff, the other got off after her. The other evidence in plaintiff’s behalf related to the nature of her injuries. The testimony on the part of the defendant was to the effect that the plaintiff alighted safely from the car and advanced to the sidewalk and after getting on the sidewalk tripped and fell. The trial resulted in a verdict for the defendant. Plaintiff .filed a motion for a new trial, which the court sustained, and the defendant appealed.

The only ground on which the motion for a new trial was sustained, as stated by the court, was that counsel for the defendant in his argument to the jury had misstated the evidence of one of the witnesses for the defendant. The ruling on that point presents the first question for our consideration.

The defendant called as a witness a physician who had attended the plaintiff and had treated her for her injuries. As some question was likely to arise as to the competency of this, witness’s testimony, the court directed that the jury be sent out of the room. After the jury had retired the counsel for defendant was directed to ask the witness such questions as he intended to ask when the jury should be recalled, this with a view to enable the court to- judge of the competency of the evidence, a course of procedure which we will take this occasion to say was very wise and judicious. In the absence of the jury, after the witness in answer to questions by counsel for defendant had stated that he was a practicing physician and that he had been called to attend the plaintiff and had continued to attend her for about two months, the following occurred: “By the Court: Q. You waited on her; did she at any time tell you of any hurt she had received or injuries that she had? A. She did. ' Q. You may state what she said in reference to the manner in which she received these injuries'? A. She said she was on the Metropolitan car on- Main street coming north, and when she got to Ninth and Main streets, where she was going to get off, she had heard the .conductor talking to a man in the car that wanted to go to the Union Depot, and the conductor told' him he would have to hurry to catch the Ninth street car, and the man as she started to get off — the man brushed against her and she fell from the car.”

"While the jury was still out counsel for defendant stated to the court in the way of an offer what he purposed to show by this witness, in which statement he made no reference to what the plaintiff said to the witness about the accident, but it related only to the physical condition in which the witness found her and- during his treatment of her. At the conclusion of which offer the counsel for the plaintiff said they made no objection to it. The jury then came in and the trial was resumed with the physician as a witness for the defendant on the stand; his testimony was on the line of the offer above stated; he was not asked in regard to anything the plaintiff said.' to him about the accident or how it occurred.

In his argument before the jury the counsel for the defendant said: “Why did not the plaintiff put Dr.----(naming the physician) upon the stand? I will tell you why; they did not dare do so; they knew that he would testify, as he has testified in this case, that the plaintiff told him she had been pushed off the car by a young man with a suitcase. ’ ’ When this statement was made counsel for the plaintiff immediately objected and stated that there was no such testimony by the physician and he objected to any argument based thereon, and requested the court to reprimand the counsel for defendant and to instruct the jury to disregard such argument, but the court refused the request, saying at the time that the jury would remember the evidence. Thereupon counsel for defendant said that he would submit to the jury whether or not there was such evidence and that if there was not such evidence that fact should count against him, and again asserted that there was such' evidence. Counsel for plaintiff again stated that there was no such evidence and. asked the court to reprimand counsel for defendant and asked that the stenographer’s notes be read to the jury, but the court refused the request and said the jury should determine whether or not there was such evidence in the case.

In ruling on the motion for a new trial the trial judge delivered a written opinion in which he said:

“This motion must be sustained because of the error of counsel for defendant in misstating the testimony in his argument to the jury.” Then, after citing and quoting decisions on the point, the trial judge continued: “The court likewise erred in refusing to reprimand counsel for the misstatement. It is due to the able counsel for defendant to say that without question his argument was made in the best of faith, believing the facts were in evidence, hut he was mistaken, and the court was mistaken in failing do take prompt measures to correct the mistake. Error is presumed prejudicial and in a close ease like this, where error has undoubtedly intervened, the interests of justice demand a new trial be had.”

I. A motion for a new trial is to a great degree addressed to the judicial discretion of the trial judge, and an appellate court is reluctant to interfere with the exercise of that discretion. Particularly is this so when the case turns on the weight of the evidence or on the conduct of the counsel in the trial. The' trial court is better able than is the appellate court to estimate the value of the evidence and the effect on the jury of the conduct of the parties during the trial. Therefore it has always been the rule to sustain the action of the trial court in granting a new trial if it appears that the court in doing so acted on grounds peculiarly within the domain of its discretion, and the record so shows. In fact the appellate courts often express regret that the trial courts do not more frequently exercise their power within that domain.

There was just enough evidence in this ease to render the misstatement of the evidence complained of very significant. The plaintiff in her testimony had skid that two men were getting off the car at that time, one with a grip (by which we understand, a valise, or traveling bag of some kind) aiming to go to the Union Depot; the conductor had told him that if he would hurry he would catch the Ninth Street car that was going to the station and that when she got off he was coming on behind her. Here then we have a man with a traveling bag in his hand in a hnrry to get off the car; and following closely behind the plaintiff while she was on the platform or the step of the car, and with that picture in the jury’s mind the counsel states that the witness said that the plaintiff told him that the man with the grip brushed against her and she fell off. It was a critical point in the evidence and although when the counsel for defendant made the assertion counsel for plaintiff disputed it, yet it was reasserted' and when the court was appealed to to correct the mistake the court did not. at that time feel justified in doing so, but ruled' in effect that whether the witness had or had not' said SO' was a question which the jury should settle for themselves. But when the motion for a new trial came on for consideration the court was satisfied that wrong’ had been done and that the ends of justice called for a new trial. We do not feel justified in reversing that ruling of the trial court in a matter so peculiarly within its judicial discretion.

II. The respondent contends that even if the court erred in granting a new trial on the ground stated yet there were other errors which justified the ruling and she points out the giving of the following instruction:

“The court instructs the jury that the plaintiff is a competent witness in her own behalf, and you must consider her testimony in making up your verdict; but in determining what weight and value you will give to her testimony, you may take into consideration, with all the other facts and circumstances in evidence before you, the fact that she is the plaintiff testifying in her own behalf and her interest in the result of the suit. Whatever statements, if any, that she may have made against her own interest must be regarded as true — what she may say in her own favor is to be taken as true or false as you may believe it to be true or false when taken into consideration with all the other facts and circumstances detailed in evidence before you.”

The giving of that instruction was error. An instruction in substantially the same form was approved by a majority of this court in Feary v. Railroad, 162 Mo. l. c. 105, but that case on that point has been practically overruled in Conner v. Railroad, 181 Mo. l. c. 415; Montgomery v. Railroad, Id., 477; Sheperd v. Railroad, 189 Mo. 362; and Zander v. Railroad, 206 Mo. 445, 103 S. W. 1006.

■ The interest that a witness has in the litigation may be shown, to be considered by the jury in weighing her evidence, but when that fact is shown the jury should be left- to exercise its own judgment as to the weight to be given the testimony. It has so long been the practice for the courts to instruct the juries that in weighing the evidence they shall consider the interest, if any, the witnesses have, and their demeanor on the stand, that no question is now raised as to general retractions of that kind, but if the courts have the r«'ht to instruct at all on that subject that is as fra-as they should go, and even to that extent instructions should not be given unless there is evidence to justify them. But the court has no right to single out a particular witness whether she be a party to the suit or not, call attention, to- her interest as an inducement liable to cause her to give false testimony (for that is what the warning means) and tell the jury to be careful how they give credence to what she may say. The jury are the sole judges of the credibility of the witnesses and they know, as well as the judges know, that interest often influences the testimony of a witness, that even when there is no intentional false swearing the wish is often father to the thought and it sometimes colors memory. Those are facts of common experience, they influence men in their everyday transactions and they influence men in the jury box. It is a common sense proposition concerning which men of ordinary intelligence need no instruction.

There is another error in this instruction, to-wit, after singling out the plaintiff and cautioning the jury to beware of the influence of her interest on her testimony, it tells them, in effect, that every word she may have uttered which militates against her interest, whether deliberately or thoughtlessly, solemnly or lightly, is to be set down as truth, while everything she may have said in her own interest is to be scrutinized with care. We do not mean of course that such was the language of the instruction, but such was the meaning that it was liable to convey. There are admissions that are indisputable, for example, admissions in the record, and there are admissions made with deliberation and for a purpose which though disputable are entitled to great weight as evidence, and there are admissions that fall from the lips in thoughtless or careless conversations that are entitled to but little weight. But this instruction draws no distinction.

III. The court also gave for the defendant the following instruction:

“The court instructs the jury that in this case the mere fact that the plaintiff was injured while alighting from a car of a street railway company, gives her no right to sue and recover damages therefor from, such street railway company. Before she can recover in this case, you must not only find that the defendant street railway company was negligent in the particular and specific respects submitted in these instructions, but you must further find that such negligence was the direct cause of the injury, and even then she cannot recover in this case if she was negligent and her negligence directly contributed to her injury.”

That instruction was erroneous because there was no evidence at all tending to show that the plaintiff was guilty of contributory negligence. She was either thrown off by the sudden starting of the car, as her testimony tends to prove, or else she got off safely, walked to the sidewalk and there tripped and fell, as the defendant’s testimony .tended' to- prove. There is not a word of evidence tending to show that in the act of getting off the car she was negligent.

The trial court was right in granting a new trial. The judgment is affirmed.

All concur.