author: BBOWN, P. J.

text:
    THE STATE v. D. K. GREER, Appellant.
    Division Two,
    June 1, 1912.
    1. ARSON: intent to Defraud insurance Company: Knowledge. Intent to defraud an insurance company is the very essence of the crime of setting fire to a building with the intent to defraud the insurance company by which the building and its contents were insured; and there can be no such intent unless defendant knew the property was insured. In order to convict the defendant of that crime it is necessary to prove he had knowledge that the property was insured; and in this case- the evidence totally fails to show such knowledge.
    2. -: -: -: Another’s Property: Insufficient Evidence. Under the statute if the building is. not insured and the owner burns it, or if a defendant, who has no interest either in the building or its contents, assists the owner to burn it, no crime is committed, for the burning of uninsured property becomes a crime only when done by some one other than the owner. Such burning becomes a crime only because of an intent to defraud the insurer. And though the building and its contents be insured and the defendant had a desk (which was not insured) in the building, and was present in the building with the owner when the fire started, yet if there is no evidence that defendant knew the property was insured, a conviction cannot stand, because the essence of the crime, the intent, cannot exist without that knowledge.
    Appeal from Moniteau Circuit Court. — Son. J. M. Williams, Judge.
    Reversed and remanded.

      W. F. Quigley and Jeffries & Corum for appellant.
    (1) The demurrer ought to have been sustained. There was no evidence that Steinkraus ever applied for a policy of insurance on his building; no evidence that he paid the premium on said policy; no evidence of the delivery of said policy to him; and no evidence that he knew of the issuance of any such policy, if one were issued. The charge in the indictment was, ‘ ‘ which said building was at the time of setting fire to and burning insured against loss or damage .by fire, with intent then and there the insurer, the Niagara Fire Insurance Company, -a corporation, unlawfully, wilfully, maliciously and feloniously to defraud and prejudice.” There was absolutely no proof on this proposition, and, therefore, no proof of the offense charged in the indictment. (2) The information charged that the Niagara Fire Insurance Company was a corporation. This was essential. State v. Jones, 168 Mo. 402; State v. Horned, 178 Mo. 61; State v. Clark, 223 Mo. 50; Steeden v. People, 82 111. 452; People v. Schwarz, 32 Cal. 160. The allegation having been made that the Niagara Fire Insurance Company was a corporation, and such allegation being essential, it then devolved upon the State to offer some proof of the de facto existence of that company as a corporation. ■ No snch proof was offered. But such proof was absolutely essential to sustain the charge of the information. State v. Horned, 178 Mo. 61; State y. Clark, 223 Mo. 50; Rhode Island v. Murphy, 16 L. R. A. 550; State v. Ahsam, 41 Cal. 645; R. S. 1909', sec. 5238. There was no evidence tending, directly or indirectly, to show that this defendant had any reason to believe that the building was insured by the Niagara Fire Insurance Company or any other company. It was incumbent on the State to show by some fact or circumstance that he had such knowledge. The State failed to do this, and defendant should have been acquitted. Martin v. State, 28 Ala. 82. (3) The trial court permitted four witnesses to testify on behalf of the State that they saw the defendant after the explosion and that he made no declaration to them concerning it. These witnesses did not charge the defendant with the commission of any crime. No person made such an accusation against him in the presence of the witnesses. The defendant was not called upon to speak, and yet his silence was permitted to go to the jury as evidence of a confession of guilt. (4) Instruction 4, based on the first count of the information, purported to cover the whole case and authorized the jury, on a finding of the facts therein submitted, to pronounce the defendant guilty. The averment in the information that the Niagara Fire Insurance Company was a corporation was essential. Proof thereof was also essential, and there should have been a call on the jury in this instruction to find that it was a corporation. In this instruction the court attempted to define the offense charged against the defendant and tell the jury the essential facts necessary to be found to authorize a conviction. An essential element, to-wit, the existence of the insurance company as a corporation, was omitted. This constituted reversible error. State v. Silver, 130 Mo. 440; State v. Pratt, 98 Mo. 482; State v. McCaskey, 104 Mo. 648; State v. Graves, 185 Mo. 713 ; State v. Smith, 174 Mo. 586. (5) There was no fact or circumstance presented in the case that tended to show a conspiracy, and it was error for the court •to give instructions touching that subject, for the reason there was no evidence on which to base such instructions. (6) It devolved on the State to show that the defendant had knowledge of the existence of the insurance. Unless it gave proof of some fact or circumstances tending to show this knowledge on the part of the defendant, how could it be said that he intended to defraud? Knowledge on his part of the insurance was a prerequisite. Under no condition could he have entertained an intent to defraud the company, unless he had knowledge that the burning of the building would operate as a fraud on the company. Martin v. State, 28 Ala. 82.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Instruction 4 follows the language of the statute, defines the offense and also prescribes the punishment found in the statute. Secs. 4511 and 4513, R. S. 1909. (2) Appellant asserts that the demurrer should have been sustained, because appellant did not know that the building, exploded and' fired, was insured. In this appellant was in error. Sec. 4898, R. S. 1909, provides that any person who shall be an accessory to any felony before the fact shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be tried, convicted and punished in the same manner as the principal in the first degree. State v. Schuchmann, 133 Mo. Ill; State v. Orrick, 106 Mo. Ill; State v. Sykes, 191 Mo. 62. Sec. 4900', R. S. 1909, provides that an accessory before or after the fact may be indicted, tried and punished, even when the principal felon may not have been arrested, tried and convicted. State v. Casey, 207 Mo. 1. (3) Appellant asserts that there was no proof that the Niagara Fire Insurance Company was a corporation. Sec. 5238, B. S. 1909, provides that when the existence of a corporation becomes material, or in any way drawn in question in a criminal case, the fact of corporation may be proven by general reputation. Parol proof of that fact was ample in this case. The cases cited by appellant do not bear out his contention. The cases there cited deal, altogether, with a different proposition, that is, when an indictment or information charges a crime committed against a corporation, such indictment or information must state that the same was a corporation, or, if charged against a partnership or company, it must state the names of the parties composing the partnership or company. Appellant fails to cite an authority bearing out his contention under this point. State v. Knowles, 185 Mo. 141; State v. Jackson, 90 Mo. 156; State v. Tucker, 84 Mo. 23. A corporation created under the general law of another State falls within this section. State v. Fitzsimmon, 30 Mo. 236. He who advises or encourages another to do an illegal act is responsible for all the natural and probable consequences that may arise from its perpetration. State v. Darling, 216' Mo. 450; State v. Bobbitt, 215 Mo. 10. (4) Proof that the accused held a policy of insurance on the building, or the goods therein, at the time of the fire, or, who acted for one who hadi such a policy,’ is admissible.' Boberts v. State, 7 Cold. (Tenn.) 359; People v. Scott, 37 Pac. 325; People v. Fournier, 47 Pac. 1014; Commonwealth v. McCarthy, 119 Mass. 354; 1 Ency. of Ev., 986; 2 Am. &-Eng. Ency. Law (2 Ed.), p. 7941.
   BBOWN, P. J.

Convicted of arson with intent to defraud an insurance company, defendant appeals from a judgment of the circuit court of Moniteau county fixing his punishment for said crime at imprisonment for twelve months.

Defendant resided at Tipton in Moniteau county, and was engaged in buying junk, fur and hides as agent for another party. He kept his desk in a small one-story wooden building owned by one Gus Steinkraus at Tipton. Said building was used by Steinkraus as a shoe shop and shoe store.

Defendant and Steinkraus were intimate friends, and the latter kept defendant’s books. Defendant appears to have been too illiterate to keepi them himself. They resided in houses near each other in another part of town. They were jointly indicted, but separately tried, and each convicted.

The evidence tends to prove that Steinkraus had the building in which his shop was located, insured for $300, and his stock of goods and fixtures for $600; and that the building and goods were worth as much as they were insured for.

On March 23, 1910', the families of both defendant and Steinkraus were away from home. On that day they each purchased two gallons of gasoline, defendant ordering his purchase sent to his residence, while Steinkraus took his to his shoe shop.

The defendant kept a gasoline stove at his residence, and the can of gasoline purchased by him was seen there on the day fallowing the fire by several witnesses. The merchants who sold the gasoline to defendant and Steinkraus, testified that they were regular purchasers of gasoline, buying about-two gallons each per week.

On the night of March 23, 1910, defendant and Steinkraus were seen walking together about Tipton until a late hour, and appeared to be drinking heavily. Defendant claimed to be waiting to meet his wife, whom, he expected home on a night train.

About the hour of 3:30 a. m., March 24, 1910, they were at Steinkraus’s shop, and while there, an explosion occurred, and the building was set on fire. The fire was almost immediately extinguished by citizens of the town by the use of a few buckets of water. •

The evidence clearly shows that both defendant and Steinkraus left the shop immediately after the building began burning, and neither of them returned to assist in extinguishing the fire. One man was seen running from the building immediately after the explosion occurred, but the evidence does not show whether this was defendant or Steinkraus.

Defendant’s version of the matter is that about 3:30 a. m., he and Steinkraus went to the shop to get some whiskey which had been left there; that after taking a drink of the whiskey, defendant went out at the back door to answer a call of nature; and in doing so, upset a jug of gasoline sitting on the floor; that after he returned and while' he was standing in the back door,'Steinkraus struck a match to light his pipe, and when he threw the match to the floor, the explosion occurred, blowing defendant out the door, and also blowing the door shut with such force as to amputate one of his fingers which was caught between the door and the facing thereof.

' Defendant’s statement is in a measure corroborated by the finding of his amputated finger inside the shop, and his hat just outside, after the fire was extinguished. Some sacks and papers saturated with coal oil or gasoline were found inside the building. A jug one-third full of coal oil, and a can two-thirds full of gasoline were also found there after the fire.

To a doctor who treated defendant a few hours later, he stated that he tore his finger off in a door; while to another witness who called on him near the same time, he said he fell down and tore his finger off.

While the evidence discloses a strong friendship and dose intimacy between defendant and Steinkraus, the .record is barren of anything tending to prove that defendant had knowledge that either the shoe shop or the contents thereof were insured. The defendant testified' positively that he had no knowledge that the property was insured.

OPINION.

Defendant attacks the judgment on many grounds, but we find it only necessary to consider one — the sufficiency of the evidence to support the verdict.

While the evidence shows that defendant was present when the Steinkraus building was purposely or negligently set on fire, we have examined and reexamined the record without finding one word to indicate knowledge on the part of defendant that the building or its contents were insured.

Defendant had no interest whatever in either the building or its contents; and consequently there was no call for Steinkraus or anyone else to inform him about the insurance.

The acts of Steinkraus in keeping the defendant’s books would give the former an intimate knowledge of defendant’s business, but would not tend to inform defendant of Steinkraus’s business transactions. Defendant was travelling part of the time.

Intent to defraud an insurance company is the very essence of the crime of which defendant was convicted. No such intent could exist without knowledge that the property was insured.

Ordinarily when one purposely or designedly performs an unlawful act, the law presumes that he intends the natural or usual consequences of such act. If in attempting to commit one crime, he commit another, the law will carry or transmit the unlawful motive from the act intended to the act committed. [1 Wharton’s Criminal Law (2 Ed.), sec. 320.]

However, that rule does not apply in this case. Under sections 4509, 4511 and 4512, Revised Statutes 1909, if the shoe shop and contents had not been insured and Steinkraus had burned them, or if defendant had assisted him in that act, no crime would have thereby been committed; for the reason that the burning of uninsured property of that character only becomes a crime when done by someone other than the owner. [Wharton’s Criminal Law (2 Ed.), secs. 841 and 843.]

However reprehensible it might have been for Steinkraus to burn his own property, or for another to assist him in that act, it only became a crime because' of the intent to injure the insurer of the property; consequently, to convict defendant it was necessary to prove that he had knowledge that the property was insured. [Martin v. State, 28 Ala. 71; Kelley’s Criminal Law (2 Ed.), sec. 604; State v. Hickam, 95 Mo. 323; People v. Kelly, 42 N. Y. Supp. l. c. 759.]

For failure of the state to prove that defendant knew that the Steinkraus property was insured, the judgment of the trial court is reversed and the cause remanded.

Kennish and Ferriss, JJ., concur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    CHARLES LYONS, Receiver of MIDDLETON BANK OF WAVERLY, v. NATIONAL SURETY COMPANY, Appellant.
    Division Two,
    June 1, 1912.
    1. BILL OF EXCEPTIONS: Record Recital of Time of Filing: In Vacation or Term Time. Neither the statute nor the rules of the court require that the record proper show whether the filing of the bill of exceptions was in term or in vacation. If it shows that the bill was filed and made a .part of the record within the time allowed by the court, that is sufficient.
    2. -: Recital of Fact of Filing in Narrative Form. It is not necessary that the abstract of the record proper set out the record entry concerning -the filing of the bill of exceptions in haeo verba, or that- an abridgment thereof be set out; but a recital of the fact of its filing, in narrative form, is sufficient. That rule applies not only to the abstract of entries concerning the filing of the petition or other pleading, but it applies to an order of court or the filing of a motion or a bill of -exceptions.
    3. -: Amended Petitions. Although the abstract of the record contains the original petition and the first amended petition, yet as they were abandoned by the filing of a second amended petition upon which the cause was tried, they cannot be considered on appeal, unless introduced in evidence at the trial and made a part of the bill of exceptions-, just as any other matter of exception.
    4. SURETY BOND: Discovery of Loss During its Life; Fraudulent Conaealment. Where the bond obligated the surety company to make good any loss of money of the bank’s cashier during the term of the bond,, between November 15, 1902, and November 14, 1903, “which losses shall he discovered during said term or within six months thereafter,” and the bank did not discover the loss until January, 1906, the bank cannot recover in its suit on the bond. Fraudulent concealment by the defaulting cashier of his speculations and dishonesty and the prevention by him of a discovery of them by the other bank officers, by the use of ordinary diligence, during the term of the bond and for six months thereafter, will not extenuate á failure of the bank to discover the loss, nor extend the term.
    5, -; -:--: Limitations. Concealment of fraud will toll the Statute of Limitations in certain eases, but a suit on a bond obligating a surety company to pay the losses of an embezzling cashier if discovered during the term of the bond or within six months thereafter, is not such a-case. The bond put the duty on the bank to discover the loss, not on the surety company. Nor is this provision of the bond to be held to be an attempt to circumvent the statute; if the 'discovery had been made within the time fixed by the bond, the bank would have the full statutory time in which to sue. The bond does not attempt to limit the time for bringing an action which has already accrued; but the question is, did a cause of action ever accrue? Before a cause of action accrued two things were necessary: first, a loss by the bank; and, second, a discovery of the loss by the bank within the time prescribed by the bond. And there -was no such discovery, and the Statute of Limitations has no application to the case.
    Appeal from Lafayette Circuit Court. — Hon. Samuel Hams, Judge.
    Reversed.

      Frank Hagerman and Kimbroitgh Stone for appellant.
    (1) Courts will interpret, not make, contracts for the parties. Indem. Co. v. Mining Co., 154 Fed. 554; Mining Co. v. Ins. Co., 126 Mo. App. 104; Grocer Co. v. Canning Co., 129 Mo. App. 325; Diederick v. Eose, 228 111. 610. (2) Failure to make discovery of alleged loss, to give notice thereof, to make claim therefor or proof thereof, according to the requirements of the bond, (a) Construction of bond and diligence in discovering loss. No room for construction where bond is unambiguous. Assn. v. Obert, 169 Mo. 515 ; Finkbohmer v. Ins. Co., 6 Cal. App>. 379; Cas. Co. v. Wade, 101 Tex. 102. Means of information is equivalent to having the information. Wood v. Carpenter, 101 U. S. 135; Truett v. Onderdonk, 120 Cal. 581. (b) Statute of Limitations. Discovery of loss clause. Am. Sur. Co. v. Pauly, 170 U. S. 133; Guarantee Co. v. Bank, 183 TJ. S. 401. Not a suit for fraud but upon contract. E. S. 1909, sec. 1888 ; Martin v. Knapp, 45 Mo. 48; State ex reí. v. Hawkins, 103 Mo. App. 251; McMullen v. Assn., 56 L. E. A. 924. (c) Importance of statements in application for bond. Brokerage Co. v. Fidelity Co., 44 So. (La.) 449. (3) False statements in application for bond. Willoughby v. Fidelity Co., 16 Okla. 546; Indem. Co. v. Mfg. Co., 95 Fed. 13,1; Hunt v. Fidelity Co., 99 Fed. 242.

      Alexander Graves and Horace F. Blackwell for respondent.
    (1) (a) There is no bill of exceptions before the court for each of several good reasons, infra, as shown by the abstract. Abstract, page 43: “And thereafter, upon the 22d day of December, 1910, and within the time allowed by said orders and stipulations for the filing of said bill of exceptions, the same was duly presented to said judge and by Mm signed, approved, ordered filed and made a part of record and was filed and made part of said record.” TMs does not show whether it was done in term or vacation. Clay v. Pub. Co., 200 Mo. 672; Johnson v. Hodges, 65 Mo. 589; Bick v. Williams, 181 Mo. 527; Harding v. Bedoll, 202 Mo. 632. On tMs point no presumption indulged. Harding v. Bedoll, 202 Mo. 632; Reno v. Fitz Jarrel, 163 Mo. 413; Kolokas v. Railroad, 223 Mo. 461. (b) It does not purport to be ’ an abstract of any record entry whatever. Stark v. Zehnder, 204 Mo. 449; Hill v. County, 195* Mo. 514; Ricketts v. Hart, 150 Mo. 68. (c) The matter in the abstract just preceding signature of circuit judge is of no value on this point. Williams v. Harris, 110 Mo. App-. 540; Railroad v. Wyatt, 223- Mo. 352; Hill v. County, 195 Mo. 514; Stark v. Zehnder, 204 Mo. 449. (d) On page 348 of the abstract the words “Filed December 22, 19101. J. W. Sydnor, Clerk Circuit and ex-officio clerk Criminal Court,” if genuine, have no effect whatever. Williams v. Harris, 110 Mo. App. 540; Johnson v. Plodges, 65 Mo. 589; Malloy v. Clark, 130 Mo. 211. (e) Besides, the clerk’s affidavit is on file in this court denying that he wrote or authorized said words to be placed there. (f) There is a break in the alleged extensions of time for filing bill of exceptions in the abstract. This abstract contains an unusual mixture of record proper and of matter of exception, whereby “the court is put to picking and choosing, to sorting out exceptions from record entries and record proper- — guess where it is to be found and authenticated, and run a hazard of guessing wrong.” Kolokas v. Railroad, 223 Mo. 461; Storage Co. v. G-lasner, 150 Mo. 426. (2) The abstract of record proper is fatally defective. The record entry of the filing of bill records: “And thereafter, upon the'22d day of December, 1910; and within the time allowed by said order and stipulation for the filing of said bill of exceptions, the same was duly presented to said judge and by Mm signed, approved, ordered filed and made a part of record and was filed and made a part of said record.” On this point we respectfully refer to what has been shown under point one, supra, (b) There is nothing to show by proper abstract the ruling on motions. On page 35 of his abstract, appellant presents the following as the entire abstract of the record of the order of the court overruling said motions for new trial and in arrest of judgment: “Whereupon, said motions being overruled by the court and, defendant having excepted to each of said rulings, defendant upon the same date and during said term of court filed its affidavit for appeal to the Supreme Court of Missouri, wMch (omitting caption), was as follows: (See abstract, page 35.) ” First. It does not purport to be a record entry. It asserts nothing concerning a court order. It is a phrase. It more especially concerns appellant’s exceptions and its appeal from the judgment below. Stark v. Zehnder, 204 Mo. 449; Harding v. Bedoll, 202 Mo. 632. Second. It mingles’ matters of exception with matters of record. Kolokas v. Eailroad, 223 Mo. 461; Owens v. Matthews, 226 Mo. 77; Hayes v. Foos, 223 Mo. 423. (c) On page 34 appears to be alleged abstract of another record entry as follows: “Whereupon, upon the same day and during the sahne term of said court, the defendant filed its motion for new trial and its motion in arrest of judgment. Said motions were, omitting caption and 'signatures, as follows: (Abstract, page 34.)” It does not hint of any record of court order allowing same to be filed. It is a mere vague statement of counsel, not hinting at any entry on the record of the court. Harding v. Bedoll, 202 Mo. 130; Barnes v. Barnes, 149 Mo. App. 5491.' Along with this alleged -record entry are found copies of said motions, contrary to the oft repeated rule of this court. Kolokas v. Eailroad, 2-23 Mo. 461; Stark v. Zehnder, 204 Mo. 449; Hayes v. Foos, 223 Mo. 423; Phillips v. Jones, 176 Mo. 329. (3) Alleged abstract of the record concerning pleadings; original petition, first amended petition and demurrer to second amended petition, (a) There is absolutely nothing of a proper abstract of record to show either filing of this demurrer, its disposition by the court, or, if overruled, any exceptions, (b) The original and the first amended petition are “abandoned pleadings,” and constitute no part of the record of the case. Ingwerson v. Railroad, 205 Mo. 335; Bailey v. 0 ’Ban-non, 28 Mo. App. 46; 3 Cyc. 1060, note 93; Aydelott v. Collins, 43 N. E. 867; Huntington v. Polk, 54 N. E. 759; City v. Opel,.67 Mo. 394. (4) Exhibits filed with pleadings have never been held by this court as part of the “record proper.” Kern v. Ins. Co., 40 Mo. 25; Peake v. Bell, 65 Mo. 224; Phillips v. Jones, 176 Mo. 329; Chambers v. Carthel, 35 Mo. 375'; Matney v. Gregg, 19 Mo. App. Ill; State ex rel. v. Crumb, 157 Mo. 561; Price v. Ins. Co., 58 Mo. App. 556; Hubbard v. Slavens, 218 Mo. 622; Majors v. Maxwell, 120 Mo. App. 285; Hanks v. Hanks, 218 Mo. 678. (5) (a) Second amended petition. Absolutely nothing identifies the matter printed on page 17 of the abstract, as a pleading upon which the case was tried. Nothing shows it was filed in the case. There is no hint of a record showing it was filed in any case in any court. The following appears on page 17 as an alleged abstract of record as an entirety: “That thereafter, upon the 5th day of August, 1907, plaintiff filed his second amended petition which was (omitting caption, signatures and copy of bond which was same as Exhibit A to the preceding petitions) as follows:” This is entirely futile as an abstract of record proper. No hint of a record nor of a court. Barnes v. Barnes, 149 Mo. App. 549; Harding v. Bedoll, 202 Mo. 630; Hill v. County, 195 Mo. 514. (b) On page 18 of the so-called abstract of record it will be seen by inspection that a most material allegation ,is omitted from the record of the second amended petition. Appellant expects the court to conjecture what is meant by “(Here follows Bond.)” Certainly this court cannot conjecture. Reno v. Fitz Jarrel, 163 Mo. 413. It might hazard a guess and guess wrong. Kolokas v. Railroad, 223 Mo. 461. (c) Besides that part of pageT8 “ (Here follows Bond) ” destroys entire matter as an abstract proper of the record. Barnes v. Barnes, 149 Mo. App. 549. (6) Plaintiff was entitled to judgment below for the simple reason (if for no other) that'the abstract of record utterly fails to show any record entry whatever that any answer was filed in the court below. There is on page 23 the following: “That thereafter defendant filed its general demurrer to said petition which being overruled, defendant upon the 12th day of August, 1907, filed its answer which was (omitting caption and signatures), as follows: (Abstract, 23.) ” We submit that this constitutes no abstract of the record of any court of any case. Barnes v. Barnes, 149 Mo. App. 549; Harding v. Bedoll, 202 Mo. 630; Walser v. Wear, 128 Mo. 653. (7) Appellant cannot now amend this abstract. Harding v. Bedoll, 202 Mo. 630; Everett v. Butler, 192 Mo. 569.
   KENNISH, J.

This is an appeal from a judgment of the circuit court of Lafayette county, in an action by Charles Lyons, receiver of the Middleton Bank of Waverly, Missouri, plaintiff, against the National Surety Company, defendant, to recover the penalty of a bond for ten thousand dollars, made by the defendant to said Middleton Bank, guaranteeing the fidelity of E. H. Lewis, cashier of said bank. By agreement of the parties a jury was waived, and at the April term, 1907, the cause was tried to the court. The trial resulted in a finding and judgment in favor of the plaintiff for ten thousand dollars, and from such judgment the defendant appealed to this court.

Plaintiff’s second amended petition, upon which the cause was tried, alleges: That on the 25th day of November, 1902, the defendant, by its bond of that date, executed and delivered to said Middleton Bank, undertook and agreed to make good and reimburse to the said bank any pecuniary loss of money, security or other personal property belonging to said bank, not exceeding the sum of ten thousand dollars, that might be sustained by said bank by reason of the fraud or dishonesty of E. H. Lewis, cashier of said bank, in connection with the duties 'pertaining to the position of cashier, occurring during a term beginning on the 15th day of November, 1902, and ending on the 14th day of November, 1903.

The petition further alleges that there have been breaches of said bond, in that said Lewis, at the times, in the amounts and by the means specifically set out in the petition, fraudulently and dishonestly converted to his own use the sum of $22,867.50, belonging to said bank. All of the acts of embezzlement counted on in the petition are alleged to have occurred in the months of August and October, 1903. The petition also alleges that neither the Middleton Bank nor its officers, before the appointment of the receiver, had notice or knowledge that there had been a loss under said bond, and that the receiver did not learn of the existence of the bond and that the bank had sustained losses that were covered by the bond, until the month of January, 1906; that on February 1,1906, the receiver gave the defendant written notice of the loss and of his claims for reimbursement. The prayer of the petition is for judgment for the full penalty of the bond.

The answer pleads six separate defenses, as follows: (1) A general denial; (2) that the bond expressly provides that the defendant shall be liable 'only for such losses as shall be discovered during the term of the bond or within six months thereafter; that it is also provided by the bond that notice of loss shall be given to the defendant immediately upon discovery and during the term of the bond or within six months thereafter; that the alleged losses were not discovered, nor was notice thereof given to the defendant, within the time so provided for discovery and notice',* (3) false representations made by the president of the bank in the written application for the bond; (4) failure of the bank to comply with the terms of the bond as to making frequent audits and examinations of Lewis’s accounts ; (5) failure to notify the defendant, as required by the bond, that Lewis gambled and was dishonest and unworthy of confidence, after knowledge of such facts came to the officers of the bank; (6) that suit was not instituted within one year after making claim of loss, as required by the conditions of the bond.

The reply is a general denial.-

The evidence introduced at the trial is voluminous, and we shall refer to only such parts of it as a.re essential to a proper understanding of the legal questions presented.

The plaintiff introduced in evidence the bond upon which the action is based. The paragraph containing the obligation and risk assumed by the defendant is as follows:

“Now therefore, for and in consideration of the sum of twenty-five dollars, and in further consideration of the statements made by the employer to the company and of the covenants on the part of the employer hereinafter contained, the company hereby undertakes and agrees to and with the employer that it will, subject to the provisions and conditions herein contained, which shall be conditions precedent to the right of the employer to recover hereunder, at the expiration of three months next after proof satisfactory to the company of any loss for which the company may be liable hereunder shall have been furnished to the company at its principal office in the City of New York, make good and reimburse to the employér such pecuniary loss of money, securities or other personal property belonging to the employer, or in the employer’s possession and for which the employer is legally liable, not exceeding the sum of ten thousand dollars, as may be sustained by the employer by reason of the fraud or dishonesty of the employee in connection with the duties pertaining to the office or position to which the employee has been appointed, and occurring during the term beginning on the fifteenth day of November, A. D. 1902, and ending on the fourteenth day of November, A. D. 1903, both days inclusive, which loss shall be discovered during said term or within six months thereafter and within six months after the determination of this obligation.”

Other evidence introduced by the plaintiff tended to show the following facts:

E. H. Lewis was cashier of the Middleton Bank from 1899 until the bank failed in 1905. The Secretary of State took charge of the bank on May 2, 1905. On the day following, plaintiff was appointed receiver and three days later qualified as receiver and took possession of the effects of the bank. Shortly after he was appointed receiver plaintiff made a demand upon the president of the bank for the bonds of the cashier and assistant cashier. The president gave him the bond of the assistant, but did not deliver to him any of the bonds given by Lewis as cashier, because he did not know where any of them were. In November or December, 1905, the receiver found the bond in suit among some papers belonging to the bank and that had come into his possession when he took charge of the assets of the bank as receiver. In the latter part of January, 1906, he had an accountant make an examination of the books of the bank, and from such examination learned that the losses involved in this suit had occurred during the period covered by the bond. He promptly notified the defendant of the losses and of his claim for indemnity.

During the period covered by the bond Lewis embezzled from the bank the sum of $22,867.50', by means of seven drafts, five of them drawn on the Mechanics’ National Bank of St. Louis, and two of them drawn on the Union National Bank of Kansas City, with which banks the Middleton Bank had exchange accounts. All of the drafts were signed by Lewis as cashier and were paid by the banks on which they were drawn. The money paid on them was by Lewis converted to his own use. He never accounted for the money thus obtained and the Middleton Bank lost the entire amount. Up to the time of the failure of the bank, Lewis bore a good reputation and the officers and directors of the bank had never suspected that he was dishonest.

The evidence for the defendant tended to show that the application for the bond, which was signed by the president of the bank, stated that Lewis was not indebted to the bank, while the books of the bank showed that he owed the bank more than three thousand dollars when the application for the bond was made; that the application, which was dated November 10, 1902, also stated that Lewis’s accounts had been audited and examined on October 10,1902, when in fact no such audit or examination had been made; that an examination of the books on October 10, 1902, would have disclosed Lewis’s indebtedness to the bank; that it was a well known fact in the little town of Waverly that Lewis, while cashier of the bank, speculated heavily in a bucket shop; that from the time the bond was issued in 1902 until the bank failed in 1905 no examination of Lewis’s accounts was made by the bank, and that by such an examination made at any time after October, 1903, the losses in controversy would have been discovered.

At the close of plaintiff’s evidence, and again at the close of all the evidence, the defendant asked an instruction in the nature of a demurrer to the evidence. Both instructions were refused and defendant saved an exception to the refusal of each.

The trial court made a finding of facts to the effect that by the fraud and dishonesty of Lewis in appropriating to his own use the money of the bank, he was a defaulter in the sum of $22,867.50, and that by reason thereof the Middleton Bank had wholly lost said sum; that Lewis concealed his said thefts and that the bank, before the appointment of the receiver, had no notice or knowledge of the same, and could not have had such notice or knowledge by the exercise of ordinary care and diligence; that the receiver did not discover that the bond was in existence until January, 1906, and did not discover that a loss had been sustained under said bond until February 1, 1906, and immediately upon such discovery gave written notice of the loss to the defendant; that such notice was received by the defendant, and that upon the receipt of the notice the defendant expressly denied liability on account of said loss; that the Middleton Bank, the board of directors thereof and the receiver had performed all of the conditions required by the bond to be by them performed; that accordingly the court found the issues for the plaintiff and against the defendant.

Pursuant to this finding judgment was rendered in favor of the plaintiff for the sum of ten thousand dollars.

I. Although respondent appeared in this court by brief and oral argument, he has not briefed o.r discussed the alleged errors urged by appellant for a reversal of the judgment. On the contrary he has devoted his whole efforts to the support of a motion to dismiss or affirm for alleged defects in appellant’s printed abstract of the record. The questions thus raised by respondent demand first consideration, for if they are well founded they put an end to the case, at least in this court.

II. It is urged that “the so-called abstract of the record proper fails to show whether the bill of exceptions was filed in term time or vacation; or by whom filed; or in wbat case, and does not purport to be an ■abstract of any record entry.”

In order to understand the attack thus made, it should be prefaced that the abstract of the record proper sets out in extenso, with proper words of identification, the pleadings in the case, the judgment, the affidavit for appeal, the order granting, the appeal and allowing time to file the bill of exceptions, and also stipulations of counsel and orders of court extending such time until the bill was filed within the time so extended. The following then appears, namely:

“And thereafter, upon the 22nd day of December, 1910, and within the time allowed by said orders and stipulations for the filing of said bill of exceptions, the same was duly presented to said judge and by him signed, approved, ordered filed and made a part of the record and was filed and made a part of said record. ’1

Is the foregoing recital sufficient? It is said by respondent that it fails to show whether the bill was filed in term time or in vacation. The law then in force provided that the bill might be 'filed “at the time or during the term, or within such time thereafter as the court may by an order entered of record allow, which time may be extended,” etc. The record shows that time was allowed after the term to file the bill and was extended from time to time, and it is recited that the bill was filed and made a part of the record within the time so allowed. It is not required either by the statute or the rules of this court, that the record show whether the filing was in term or in vacation and we are unable to see why that fact must necessarily appear in order to give validity to the bill.

We have not overlooked what was said by this court in the case of Clay v. Union Wholesale Pub. Co., 200 Mo. l. c. 672, 673, cited by respondent upon this point. While language is used in that case to the effect that it should appear in the abstract whether the bill was filed during the term or in vacation, it is shown by the statement of facts that the record contained no recital whatever as to the bill of exceptions, except in the certificate of the judge authenticating the bill. There is therefore no parallel between the facts of that case and the case at bar, and it is unnecessary to do more than to refer to the principal of law that a case can become a precedent only in so far as it decides issues before the court for adjudication.

The objections that it does not appear in the record by whom the bill was filed or in what case it was filed are so technical and lacking in substance as not to require consideration.

There is more merit in the objection that the recital does not purport to be an abstract of any record entry. It raises this question as to appellate procedure, viz.-: If the subject-matter of the printed abstract of the record proper is as to some order of court or the filing of some motion or paper in the case, and not a pleading involved in the appeal, is it necessary that the record entry or an abridgment thereof be set out, or is a recital of the fact itself, in narrative form, a compliance with the rule? If the latter is sufficient, then the recital in this case must be upheld; otherwise, it cannot be. The fact should not be overlooked in the consideration of this subject that the entire abstract purports to be a copy or recitation of what the court records show concerning the case.

The question presented need not be discussed as an original proposition, for it has been before this court, in one form or another, in many cases, and recently in the following: State ex rel. Caulfield v. Broaddus, 234 Mo. 331; Harding v. Bedoll, 202 Mo. 625; Hutchinson v. Patterson, 226 Mo. 174; State ex rel. Brown v. Broaddus, 216 Mo. 336; Elliott v. Delaney, 217 Mo. 14; Eliot v. Railroad, 204 Mo. 1.

In the Caulfield case, supra, the point before us was the sufficiency of the abstract as to the affidavit for appeal and the order allowing the appeal. The abstract recital was:

“Afterward on the 26th day of May, 1909, at said April term, 1909, of said circuit court, defendant filed its application and affidavit for appeal, and on the same day the court granted and allowed the defendants an appeal to the Kansas City Court of Appeals, and approved the bond of «said defendant for an appeal.”

It will be observed that the recital in that case, which was held sufficient, does not refer directly to the record. It merely states the facts purported to be shown by the record, in narrative form. After a discussion of the former decisions, the court, l. c. 337, said: “It must be taken as the settled appellate procedure of the courts of this State that it is not necessary to set forth either the affidavit in haec verba, or its contents, in order to entitle appellant to a hearing of his appeal in the higher court.” Under the foregoing authorities we hold that respondent’s contention as. to the recital under review is without substantial merit.

The abstract of the record proper contains the original petition and the first and second amended petitions, upon the last of which the casé was tried. The first two petitions were abandoned pleadings and constituted no part of the record proper. They could only become a part of the record as matter of exception. They were not offered in evidence and therefore are not a part of the record. [Railroad v. Bank, 212 Mo. l. c. 517; Forrister v. Sullivan, 231 Mo. 345; Rule 9, rules of this court.] We sustain respondent’s contention that the original and first amended petitions are not properly before us and cannot be considered on this appeal.

Many other points are made by the respondent in challenging the abstract of thé record, and many authorities are cited in support thereof. We have examined them, but time and space forbid that we extend this opinion to the length necessary for a discussion of each. We do not hold that the abstract is above criticism, but we do say it is in substantial compliance with our rules.

III. A number of errors are assigned by appellant for a reversal of the judgment, but the main contention relied upon is that the plaintiff failed to prov'e any liability of the defendant under the provisions of the bond.

The bond plainly obligates the surety company to make good to the bank any loss sustained by reason of the dishonesty of the cashier during the term of the bond (November 15, 1902, to November 14, 1903) “which losses shall be discovered during’ said term or within six months thereafter, and within six months after the determination of this obligation. ’ ’ The term of the bond ended November 14, 1903, and as the discovery of the loss was not made until January, 1906-, it is obvious that it was not made during the term of the. bond or within six months thereafter. We have before us therefore a provision of the bond sued on, clear and unequivocal in its meaning, which under the evidence expressly excludes liability of the obligor, unless there" is some extrinsic reason for reaching a different result, not apparent in the evidence or on the face of the bond. It is no answer to say that the cashier, Lewis, fraudulently concealed his dishonesty and thus prevented a discovery within the time fixed by the bond. Dishonesty on the part of a bank official will always be attended with concealment. The fraud of Lewis, in concealing his embezzlements, is no more to be charged to the surety company than to the bank. Indeed, not so much; because by the terms of the bond the duty is imposed on the bank of observing and reporting any misconduct on the part of the cashier. Concealment of fraud may toll the Statute of Limitations in certain cases, but it is because it is so provided by law. We are not here dealing with that kind of a case. The contract as made by the parties, provides that the surety must pay the loss if discovered within the time stated. There is no liability unless it is so discovered. It is not for the surety company to discover the dishonesty or the loss, but for the bant This is the contract as made and under which the court 'must 'adjudicate the rights of the parties. ■

Neither can this plain provision of the bond be held to be an attempt to circumvent the Statute of Limitations with reference to the time allowed in which to bring an action. If the discovery had been made within the time fixed, plaintiff would then have had the full statutory period in which to sue. It is not a question of limiting the time for bringing an action which has already accrued, but rather whether any cause of action ever existed, for, unless we do violence to the language of the bond,' two things are necessary before liability arises: first, a loss by the bank; and second, a discovery thereof during the time prescribed by the bond.

No decision of the appellate court of this State, containing a provision of a bond or contract similar to that under review, or substantially so, has been called to our attention, but the views herein expressed are in accord with the decisions of the courts of other jurisdictions. Although the respondent has rendered us no aid upon the merits of this case, we have not confined our investigation to the authorities cited by the appellant, but have made a full examination of all the adjudicated cases at hand upon the subject. We shall refer briefly to some of them.

In the case of American Surety Company v. Pauly, 170 U. S. 133, the bond construed by the court was not materially different from the bond in this case. Referring to the provision as to discovery of the loss during the term of the bond or within six months thereafter, Harlan, J., delivering the opinion, said: “Undoubtedly the company did not agree to be liable for any fraudulent or dishonest act of the cashier not discovered until after six months from his retirement from the service of the bank.”

Fidelity and Casualty Co. v. Bank of Timmonsville, 71 C. C. A. 299, is a case in which the following provision of a bond was construed, to-wit: “That any claim under this bond, or a renewal thereof, shall embrace and cover only for acts and defaults committed during its currency, and within twelve months next before the date of, the discovery of the act or default upon which such claim is based. ’ ’

The Fidelity Company was surety on the bond for the fidelity of the cashier of a bank. The item of' loss under consideration was a special deposit of a bag of silver coin. After the cashier’s flight it was found that the bag of coin was not in the vault, but the testimony failed to show whether or not the cashier, Lechner, had taken the silver within twelve months prior to the discovery of the loss. On those facts the court said: “Unless the silver was taken by Lechner within twelve months prior to the discovery of the loss the bank had no right to recover for this default. The trial court, over the objection of the defendant, left it to the jury to say whether or not the defendant was liable as to this item. In so ruling we are constrained to hold that the learned trial court erred. The burden of proof was on the bank. The evidence left the time when Lechner committed the default in respect to the bag of silver wholly uncertain. He may have converted this money more than twelve months before the loss was discovered. ’ ’

The case last cited clearly holds that there is no liability unless the discovery of the loss is made within the time agreed upon in the bond, and fully sustains appellant’s contention. The same construction is supported by the following authorities: Frost on Guaranty Insurance (2 Ed.), p. 325; De Jernette v. Fidelity & Casualty Co., 98 Ky. 558; Fanning v. London Guar. & Acc. Co., 10 Vic. L. R. (Cases at Law) 8.

We have not overlooked the case of U. S. Fidelity & Guar. Co. v. McLaughlin, 76 Neb. 307, which is not in entire accord with the doctrine of the foregoing authorities, but, as expressly stated in the opinion in that ease, the question now under consideration was not involved, and the case cannot be considered as an authority thereon, if the bond is to be construed as a private bond.

Among the declarations of law given at the request of the plaintiff and over the objection of the defendant, number two was as follows:

“The court declares the law to be that although the loss under the bond in suit was not discovered during the term of the bond or within six months thereafter, still, if E. H. Lewis, the cashier of the Middleton Bank, concealed his fraud and dishonesty and his misappropriations, and the officers and directors of said bank prior to the appointment of the receiver had no notice or knowledge of said fraudulent and dishonest acts of said Lewis on account of his concealment thereof, as aforesaid, and could not have discovered said loss by the exercise of ordinary care and diligence, and if the discovery by the receiver that a loss had occurred during the term of the bond was not made until on or about the month of January, 1906, and said receiver thereupon caused defendant to be notified in writing of said loss at its principal offices in the city of New York, and thereupon defendant acknowledged the receipt of said notice and expressly in writing denied any liability on account thereof, then the finding will be for the plaintiff.”

The theory upon which the court tried the case, as indicated by said instructions, is in conflict with the views herein expressed.

For the reason that the evidence failed to show any 'liability of the defendant under the provisions of the bond, the judgment should be reversed. It is so. ordered.

Brown, P. J., and Ferriss, J., concur.


author: BLAIR, C.

text:
    THE STATE v. A. V. DOERRIES, Appellant.
    Division Two,
    June 1, 1912.
    JURISDICTION: Supreme Court: Constitutional Question: Cruel and Unusual Punishment. The Court of Appeals is authorized to determine whether the verdict in a misdemeanor case supports the judgment and whether the verdict and judgment fall within the limits of statutes of conceded constitutionality, and therefore the Supreme Court has no jurisdiction of a case in which the contention of appellant, made for the first time in the briefs, is that the circuit court exceeded its jurisdiction and inflicted a cruel and unusual punishment when it sentenced appellant, who had been convicted for a misdemeanor, to hard labor during his term in jail.
    Appeal from Callaway Circuit Court. — Hon. N. D. •Thurmond, Judge.
    Transferred to Kansas City Court of Appeals.

      Robertson & Robertson for appellant
    The judgment is illegal, cruel and unusual, and unconstitutional. Defendant was prosecuted for violation of sec. 4709, R. S. 1909, and the punishment is provided for by sec. 4912 and is a fine, and imprisonment in the county jail, or both. While under sec. 4915, county courts have the right to wort prisoners sentenced to jail in certain particulars, that does not authorize the circuit court to render a judgment even to do the things which the county court has a right to compel the prisoner to do. Bnt in this case, the court exceeded its jurisdiction in rendering any judgment for hard labor against the defendant, and has made its judgment void by condemning him to hard labor in violation of see. 25, art. 2 of the Constitution of the State which prohibits the infliction of cruel and unusual punishments.

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for the State.
   BLAIR, C.

Appellant was convicted in the circuit court of Callaway county of disturbing the peace of a person. On a verdict assessing the punishment at a fine of two hundred dollars and thirty days in jail the trial court entered the following judgment:

“It is therefore ordered and adjudged by the court that the defendant be confined in the county jail for a period of thirty days from this date, and it is ordered and adjudged by the court that during said period of time the defendant be sentenced to hard labor under the direction and supervision of the county court of Callaway county, Missouri, and that the State of Missouri have and recover of the defendant the sum of $200 assessed by the jury as aforesaid, together with all costs, and that execution issue against the goods and chattels of defendant, if sufficient thereof be found; but if no property of defendant be found then to arrest the defendant and commit him to the county jail until he is discharged by law.”

No objection to either the form or substance of this judgment was taken in the trial court at any time or in any' manner.

Since appellant was convicted of a misdemeanor this appeal is not within the jurisdiction of this court unless a constitutional question is involved and such question is said to be involved by reason of the clause in the judgment which sentences or attempts to sentence appellant to hard labor during his confinement in jail.

The Attorney-G-eneral has filed a motion to transfer the case to the Kansas City Court of Appeals, and the question of jurisdiction is thus presented.

No constitutional question was raised in the trial court. No contention is made, even in this court, that any such question arises in this case from the mere amount of the fine and duration of the imprisonment assessed, but the argument that appellant’s constitutional rights have been infringed is based solely on the inclusion in the judgment of the clause requiring appellant to be kept at hard labor during his confinement under this sentence.

By section 4915, Eevised Statutes 1909, the county court is authorized to require prisoners confined, after conviction, in the county jail, to work at breaking rock or on the county highways or public works or buildings, as the county court may designate. A similar provision is found in section 3733, Eevised Statutes 1909.

By section 3732 it is made the duty of every court in which any person is convicted of a crime and sentenced to be punished by fine or imprisonment in the county jail or both, to make the working on roads, buildings, etc., during such prisoner’s confinement, if any, a part of the sentence rendered.

This provision was first incorporated in the act of March 23, 1881 (Laws 1881, pp. 125, 126). By section 4915 it is also provided that, .in all convictions followed by a sentence which results in confinement in the county jail, “it shall be deemed a part of the judgment and sentence of the court that such prisoner may be worked as herein provided,” and by section 3733 it is, in like cases, provided that “it shall be deemed a part, parcel and incident of the judgment and sentence of the court before and by whom such prisoner was sentenced that such prisoner may work as herein provided.”

La this ease the protection of the Constitution was first invoked in the briefs filed by appellant’s counsel. The constitutionality of the sections of the statutes to which we have adverted (Secs. 3732, 3733 and 4915, R. S. 1909) is not challenged, the contention being, merely and solely, that by including in its judgment the clause as to hard labor the trial court exceeded its jurisdiction and thereby violated the Constitution by inflicting a cruel and unusual punishment. This contention presents no constitutional question. The court of appeals is fully authorized to determine whether the verdict in a misdemeanor case supports the judgment and whether the verdict and judgment fall within the limits fixed by statutes of conceded constitutionality.

The cause is transferred to the Kansas City Court of Appeals.

Boy, G., concurs.

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

All the judges concur.


author: BROWN, P. J.

text:
    THE STATE v. SOL MORGAN, Appellant.
    Division Two,
    June 1, 1912.
    1. APPEAL: No Bill of Exceptions: Dismissal. Though there is no bill of exceptions, yet if the record proper has been lo.dged in the appellate court and the docket fee paid, the appeal will not he dismissed.

      2. -: -: Record Proper: Motion for New Trial. The motion for a new trial does not prove itself, and it is not a part of the record proper; and though it accompanies a transcript of the record, yet it will not he considered by the appellate court, if there is no hill of exceptions.

      3. -: -: On Record Proper.- Where there is no hill of exceptions, hut only a transcript of the record, proper, and • the information properly charges defendant of murder in the first degree and the judgment and verdict show he was convicted of manslaughter in the fourth degree, and the arraignment, verdict, allocution and judgment are in due form, the judgment will he affirmed.
    Appeal from Dunklin Circuit Court. — Hon. W. 8. C. Walker, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney- General, for the State.
    (1) The State files its motion to dismiss appeal, and bases same upon, the provisions of Sec. 5313, R. S. 1909. The transcript in this case was filed with the clerk of this court on March 1, 1912. The appeal was granted by the circuit court of Dunklin county to this court on August 16, 1910. The statute provides that if any person convicted of a felony other than being sentenced to suffer death, and appeal is taken to this court, he shall perfect his appeal within twelve months from the time said appeal is granted, otherwise his appeal shall be dismissed on motion of the Attorney-General. To perfect this appeal, as used in the statute, means the placing of the cause in the appellate court for review. 4 Ency. Law, pp. 13-15; In re Chambers, 2 Pac. (Kan.) 649; State v. Tiessedre, 2 Pac. (Kan.) 650; Dold v. Robertson, 9 Pac. 304; State v. Casé, 37 Pac. 97; Greenwoods Co. v. New Hartford, 65 Conn. 464. (2) The information contains all the necessary elements to constitute murder in the first degree. It is in a form often approved by this court, and is valid and sufficient, and no complaint was made to it in the court below. State v. Barker, 216 Mo. 532; State v. West, 202 Mo. 128; State v. Long, 209 Mo. 366; State v. Horn, 204 Mo. 528; State v. Gleason, 172 Mo. 259; State v. Zorn, 202 Mo. 45; State v. Turlington, 102 Mo. 651; State v. "Wilson, 172 Mo. 428; State v. Gregor, 178 Mo. 56; State v. Gray, 172 Mo. 435. (3) Where no bill of exceptions is filed and the record proper is free from error, the judgment will be affirmed. State v. Miller, 209 Mo. 389; State v. Brown, 206 Mo. 718; State v. Roberts, 219 Mo. 720.
   BROWN, P. J.

On a charge of murdering one Frank Farrar in Dunklin county, defendant was convicted of manslaughter in the fourth degree in the circuit court of that county, and appeals from a judgment fixing his punishment at two years in the penitentiary.

Appeal was granted August 16, 1910; but no bill of exceptions was filed, and no showing made why this important feature of the appeal was omitted.

The Attorney-General has filed a motion to dismiss the appeal, but as the docket fee has been paid and the record proper is before-us, we will overrule the motion to dismiss.

Copy of defendant’s motion for new trial accompanies the record proper; but such motion does not prove itself, and in the absence of a bill of exceptions, cannot be considered. [State v. Boyer, 179 Mo. 286.]

We have diligently examined the record proper; and find that the information properly charges the defendant with the crime of murder in the first degree; the arraignment, verdict, allocution and judgment are in due form. The judgment will be affirmed.

Ferriss and Kennish, JJconcur.


author: FERRISS, J.

text:
    Ex Parte FORREST E. KNEEDLER, Petitioner.
    Division Two,
    June 1, 1912.
    1. AUTOMOBILE STATUTE: Injury: Giving Name to Injured Party: Self-Incriminatory: Constitutional. Section 12 of the Automobile Statute (Laws 1911, p. 322), declaring that “any person operating a motor vehicle who, knowing that injury has been caused to a person or property, due to the culpability of said operator, or to accident, leaves the place of said injury or accident, without stopping and giving his name, residence, . . . and operator’s license number to the injured party, or to a police officer, or to . . . the nearest police station, or judicial officer, shall be guilty of a felony punishable by a fine of not more than five hundred dollars, or by imprisonment of not more than two years,” is not violative of that portion of the Constitution which declares that “no person shall be compelled to testify against himself in a criminal cause.” The statute does not in terms attempt to authorize the admission of the exacted information as evidence in a criminal case. The mere fact that the driver discloses his identity is no evidence of his guilt, but rather of his innocence; and on the contrary, flight'is regarded as evidence of guilt. No constitutional provision was designed to protect a man’s conduct from judicial inquiry, or to aid him in fleeing from justice.
    2. -: -:--: -: -: Declaring Statute Invalid. Even if, in the enforcement of a statute in a criminal prosecution, a constitutional right is involved, it is not necessary, by a habeas corpus proceeding brought while that prosecution is pending, to invalidate the statute in order that the defendant may secure its protection. If the constitutional privilege declaring that “no person shall be compelled to testify against himself in a criminal cause” justifies the defendant automobile driver in refusing to give the information exacted by the statute, that defense can be raised when he is prosecuted for such refusal.
    3.-: Privilege: Accepted with Restrictions. Unrestricted use of motor vehicles on public streets would be extremely dangerous to life and limb and the property of the public. Their use thus becomes a fit subject for State regulation. Every person who uses a motor vehicle must be regarded as exercising a privilege and not an unrestricted right. It being a privilege granted by the Legislature, a person enjoying it must take it subject to all proper regulations.

      Habeas Corpus.
    Petitionee remanded.

      Kent Koerner and Glendy B. Arnold for petitioner.
    (1) Sec. 12 of the Motor Vehicle Act of 1911, upon which the information in this case is bottomed, is unconstitutional and void because it requires the operator of an automobile, in violation of sec. 23 of art. 2 of our Constitution, to give information which may lead to his being charged with or convicted of a crime. State ex rel. v. Hdw. Co., 109 Mo. 118; People v. Eosenheimer, 128 N. T. Supp. 1095; People v. Eosenheimer, 130 N. Y. Supp. 544. (2) The statute is also void because it is in conflict with sec. 14 of art. 2 of our Constitution, which forbids the Legislature to pass any law abridging the freedom of speech. Ex parte Harrison, 212 Mo. 88. (3) The phrase “that no person shall be compelled to testify against himself in a criminal cause” as used in art. 2, sec. 3, of our Constitution, “means that no person shall be compelled to give utterance to any fact by word or pen which utterance might then or afterwards be used as evidence against him in a proceeding then pending or afterwards to be brought.” State ex rel. v. Hdw. Co., 109 Mo. 118; People v. Eosenheimer, 128 N. Y. Supp. 1095. (4) “The constitutional guaranty against self-accusation, applies to anything required to be said or produced which is receivable in evidence; it being immaterial whether it be an oral statement provable against interest or a document receivable in evidence for a like purpose.” .(5) The Legislature has no power to pass a law which requires a person to disclose evidence which might lead to his being charged with or convicted of a crime. State ex rel. v. Hdw. Co., 109 Mo. 118. (6) Habeas corpus lies to discharge a prisoner held to answer an indictment or information founded on unconstitutional law. Ex parte Harrison, 212 Mo. 88; Ex parte Smith, 135 Mo. 223; Ex parte Neat, 157 Mo. 527; Ex parte Lucas, 160 Mo. 218.

      Seebert G. Jones and Forrest G. Ferriss for respondent.
    (1) The statute is not in conflict with section 14 of article 2 of the Constitution in relation to freedom of speech. The statute denies neither the right to speak freely nor the correlative right to remain silent. No statement or information is required from those who stop and remain at the scene of the accident. (2) The statute does not require a person to be a witness or give evidence, but to stay at the place of the accident, a duty imposed by common humanity. If he chooses to leave the place, he may’do so freely after reporting the accident. The statute does not compel a person to testify against himself in a criminal cause, and it therefore does not violate sec. 23 of art. 2 of the Constitution. (3) The chief purpose of the statute is to protect those using the streets and highways of the state — to prevent and ameliorate accidents— and it is a valid exercise of the police power of the State. People v. Rosenheimer, 130 N. T. Supp. 544. (4) Statutes regulating the registration, licensing, operating and speed of motor vehicles constitute a proper exercise of the police power of the State. Among such statutes are those requiring automobiles to stop upon signal or when about to frighten horses, and statutes requiring operators to display their license numbers in plain sight on their automobiles. One purpose of such regulations is to make known the identity of the operator in case of his failure to observe the statutory regulations. 28 Cyc. 32, 34; State v. Swagerty, 203 Mo. 517; People v. Schneider, 139 Mich. 673. (5) No one has a natural right to operate an automobile in this State. It is not a privilege of ■citizenship, nor a privilege accorded to every citizen. The State has the right to impose such conditions upon those it may authorize to operate automobiles as it may deem necessary to properly regulate and control such operation for the safety of its citizens. Whoever accepts the privilege of operating an automobile, assumes the obligation imposed by the State of either remaining at the place of accident or reporting the accident. State v. Davis, 108 Mo. 666. (6) We have in this State numerous statutes similar to the one in controversy, in that they impose penalties for failure to give information concerning transactions which may involve crime; as for instance, the following: In respect to reporting accidents in mines (R. S. 1909, see. 8462); accidents in factories (secs. 7827, 7846); physicians reporting deaths (secs. 6670, 6685); officer of private or other bank refusing to submit to examination (secs. 4585, 1085); druggists filing lists of prescriptions (secs. 5782, 5783); dealer refusing to deliver for inspection food offered for sale (secs. 6610, 4828, 4845, 4846); and bucket-shops furnishing names to customers (secs. 4777). Among these, a druggist’s act on this point has been upheld in this State, and also a pawnbroker’s act. State v. Davis, 108 Mo. 666; St. Joseph v. Levin, 128 Mo. 588. And other states have upheld statutes requiring druggists to make public records or sworn statements of their sales of liquor to be used in prosecutions for illegal sales. State v. Henwood, 123 Mich. 317; State v. Davis, 69 S. E. (W. Va.) 639; State ex rel. v. Donovan, 10 N. D. 203.
   FERRISS, J.

Habeas corpus to discharge petitioner from the custody of the sheriff of the city of St. Louis, who holds petitioner under a capias issued on an information based upon the following statute:

“Whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misdemeanor. Any person operating a motor vehicle who, knowing that injury has been caused to a person or property, due to the culpability of the said operator, or to accident, leaves the place of said injury or accident, without stopping and giving his name, residence, including street and street number, and operator’s license number to the injured party, or to a police officer, or in case no police officer is in the vicinity of place of said injury or accident, then reporting the same to the nearest police station, or judicial officer, shall be guilty of a felony punishable by a fine of not more than five hundred dollars, or by imprisonment for a term of two years, or by both such fine and imprisonment; and if any person be convicted a second time of either of the foregoing offenses, he shall be guilty of a felony punishable by imprisonment for a term of not less than two years and not more than five years. A conviction of a violation of this subdivsion shall be reported forthwith by the trial court or the clerk thereof to the Secretary of State, who shall, upon recommendation of the trial court, suspend the license of the person so convicted, or if he be an owner, the certificate of registration of his motor vehicle, and, if no appeal therefrom be taken, or if an appeal duly taken be dismissed, or the judgment affirmed, and upon notice thereof by said clerk, the Secretary of State shall revoke such license, or in the case of an owner the certificate of registration of his motor vehicle, and shall order the license or certificate of registration delivered to the Secretary of State, and shall not reissue to him said license or certificate of registration or any other license or certificate of registration unless the Secretary of State in his discretion, after an investigation or upon a hearing, decides to reissue or issue such license or certificate.”

The ■ information charges in the first count that one Ernest Combs was in charge and control of, and operating and managing, an automobile upon a street in the city of St. Louis, and then and there, by accident, struck, ran over, injured and killed one Frank Farrar, with such automobile, and that he, knowing that such injury had been caused, did then and there, unlawfully and feloniously, leave the place of such accident without stopping and giving his name, residence and license number, and further, that the petitioner, before said Combs left the place of the accident, did unlawfully, feloniously and knowingly incite, procure, aid, counsel, hire and command the said Combs to do and commit said felony of feloniously leaving the place of said accident, in the manner and form aforesaid. The second count of the information contains the same charge, except that instead of charging the injury to have been accidental, the information •charges that Combs did, then and there, “feloniously, carelessly, recklessly and with culpable negligence,” throw and cast the said Farrar to the pavement and drive the automobile over 'him, causing his death, making the same charge against the petitioner as to inciting Combs to leave the place of injury.

A demurrer was filed to this information in the circuit court and overruled, whereupon petitioner applied in this court for a writ of prohibition against Hon. James E. Withrow, judge of the circuit court before whom the cause was pending, which application was denied. He then sued out this writ of habeas corpus.

The only question involved is, whether or not the act in question is constitutional. It is claimed by the petitioner that the statute violates section 23 of article 2 of the State Constitution, which provides that “no person shall be compelled to testify against himself in a criminal cause.”

The statute in question is section 12 of an act of the Legislature approved March 9, 1911 (Laws 1911, p. 322), and comprising in all sixteen sections, containing minute regulations and restrictions upon the use of motor vehicles dn public streets and highways. Under the provisions of the act every automobile must be registered with the Secretary of State, with the name and address of its manufacturer and owner, and the number of such vehicle. Such number must be conspicuously displayed on the vehicle. The character of the brakes, signaling devices and lights is specified. The statute prescribes the rate of speed and other rules of the road. Every chauffeur must be licensed, and must also register his name and address. The highest degree of care is exacted in operating the vehicle. No such vehicle can be operated without a license from the State.

The section in controversy was enacted for the purpose, doubtless, of preventing those .controlling and operating automobiles from concealing their identity by immediate flight' from the scene of accident, and also to secure necessary aid for the injured. Therefore it requires those in charge of the vehicle to remain at the place of accident, or give their names and addresses before leaving.

There can be no question but that this act, including section 12, is a reasonable exercise of the police power. The petitioner does not contend otherwise. His contention is that, whether reasonable or not as a police measure, it is invalid because it violates the constitutional provision that “no person shall be compelled to testify against himself in a criminal cause.” The argument is that the driver may be charged with the crime of culpable negligence, and that the information exacted by the statute in question may be used as evidence to establish his connection with the injury.

The statute is a simple police regulation. It does not make the accident a crime. If a crime is involved, it arises from some other statute. It does not attempt in terms to authorize the admission of the information as evidence in .a criminal proceeding. The mere fact that the driver discloses his identity is no evidence of guilt, but rather of innocence. [State v. Davis, 108 Mo. 667.] On the contrary, flight is regarded as evidence of guilt. In the large majority of cases such accidents are free from culpability. If this objection to the statute is valid, if may as well be urged against the other provisions, which require the owner and chauffeur to register their names and number, and to display the number of the vehicle in a conspicuous place thereon, thus giving evidence of identity, which is the obvious purpose of the provisions. [St. Louis v. Williams, 235 Mo. 503.] We have several statutes which require persons to give information which would tend to support possible subsequent criminal charges, if introduced in evidence. Persons in charge are required to report accidents in mines and factories. Physicians must report deaths and their causes, giving their own names and addresses. Druggists must show their prescription lists. Dealers must deliver for inspection foods carried in stock. We held a law valid which required a pawnbroker to exhibit to an officer his book wherein were registered articles received by him, against his objection based on this same constitutional provision. We held this to be a mere police regulation, not invalid because there might be a possible criminal prosecution in which it might be attempted to use this evidence to show him to be a receiver of stolen goods. [State v. Levin, 128 Mo. 588.] If the law which exacts this information is invalid because such information, although in itself no evidence of guilt, might possibly lead to a charge of crime against the informant, then all police regulations which involve identification may be questioned on the same ground. We are not aware of any constitutional provision designed to protect a man’s conduct from judicial inquiry, or aid him in fleeing from justice. But even if a constitutional right be involved, it is not necessary to invalidate the statute to secure its protection. If, in this particular case, the constitutional privilege justified the refusal to give the information exacted by the statute, that question can be raised in the defense to the pending prosecution. Whether it would avail we are not called upon to decide in this proceeding.

The petitioner relies upon State ex rel. v. Simmons Hardware Co., 109 Mo. 118, wherein we held a statute invalid which required an officer of a corporation to answer under oath whether the corporation had violated the statute concerning trusts and combinations, and where the statute further made a violation of such trust • statute a crime. The distinction between that case and this is obvious. There the information relates directly to a crime created by the same statute, and is necessarily incriminatory if the answer is in the affirmative. [In re Conrades, 112 Mo. App. l. c. 41.] This distinction was pointed out also in the Levin case, supra.

Our attention is called to the case of People v. Rosenheimer, 128 N. Y. Supp. 1093, wherein the Court of General Sessions held a similar act invalid. This decision was affirmed by a divided court, three to two, in the appellate division. [130 N. Y. Supp. 544.] We regard the dissenting opinion by Ingraham, P. J., as sustained by the better reasoning.

Similar statutes have been passed in Maine, New Jersey, Michigan, Florida, California and other states. Our attention is called to no decision upon the question involved here by any court of last resort.

Common observation and experience show tbat unrestricted use of motor vehicles on public streets would be extremely dangerous to life and limb and tbe property of tbe public. Tbeir use thus becomes a fit subject for State regulation. Every person who operates or uses a motor vehicle must be regarded as exercising a privilege and not an unrestricted right. It being a privilege granted by the Legislature, a person enjoying such privilege must take it subject to all proper restrictions.

We cannot hold invalid this statute, imposing a proper restriction, because of its suggested possible relation to a possible criminal prosecution.

It is ordered that the petitioner be remanded.

Brown, P. J., and Kennish, J., concur.