text:
    FRED W. WIEHTUECHTER et al. at the Relation and to the Use of the AMERICAN INTERNATIONAL MUSICAL & THEATRICAL UNION, LOCAL NO. 2, A Voluntary Trades-Union, Plaintiffs in Error, v. OWEN MILLER et al.
    Division Two,
    December 23, 1918.
    1. VOLUNTARY ASSOCIATION: Power to Sue. An unincorporated voluntary association, such as a labor union, can maintain a suit in its own name. In view of the language of Sections 2963, 2990 and 7109, Revised Statutes 1909, such an association has the status of a corporation, and the Act of 1915, Laws 1915, page 225, provides the method of service of process upon it.
    2. —-: -: In Name of Another. But the suit of a voluntary association should be prosecuted in the name of the real party in interest. If a local trades-union has authority to sue and be sued in its own name, its suit should not be prosecuted “at the relation and to the use” of an incorporated parent organization.
    3. POWER TO SUE: Plaintiffs For Themselves and. Others. In an action at law plaintiffs cannot bring suit for all others similarly situated, as in a suit in equity. They cannot bring suit in their own names merely because the members of the trades-union in whose behalf they sue are too numerous to be joined as plaintiffs.
    4. -:: Authorization by Labor Union: Trustees of Express Trust: No Contract. Plaintiffs’ right to bring suit “in a representative capacity, for the use and benefit of said voluntary trades-union, under power and authority vested in them by said union” is available to them only in case they bring themselves within the terms of the statute as “trustees of' an express trust,” which are technical words, and include only those “in whose name a contract is made.” They cannot in such representative capacity maintain a suit for libel or other tort against the union or its members.
    5. -: Plaintiffs as Agents. Plaintiffs cannot maintain an action for libel as a friendly act to or as the authorized agent of other members of a local trades-union, because the suit would not be in the name of the real party in interest.
    6. -: -1 — : Tort: Assignment. It is possible that an assignment, for a valuable consideration, of a cause of action, though sounding, in tort, by the real parties in interest, would authorize the assignees to sue.

      7. -: Express Trust: In Personal Property. The express trust which would authorize the trustee to sue must he a formal one. A trust in personal property may be created and proved by parol, but a parol trust must be clear and definite in its terms, and must embrace a definite subject, a definite object and a definite purpose.
    8. -: -: Cause of Action: Interest in Trade Mark. An allegation that the members of a trades-union have an interest in a trade-mark, which is not connected with plaintiffs’ right to sue in behalf of said members, is not an allegation of their authority to sue, nor an allegation that title to any property is vested in the plaintiffs as trustees.
    9. -: Trade Union: Libel. The individual members of a trades-union, or the union itself, cannot authorize a few of its members to sue for damages caused by libel of its members or libel of the union.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Affirmed.

      F. W. Imsiepen and George F. OsieJc for plaintiffs in error.
    (1) Local unions may be impleaded in tbeir common name. Rhodes Bros. v. Musicians’ Union No. 198, 37 R. I. [1915] 281. Or its members may be impleaded alone, under the law of principal and agent. Lawler v. Loewe, 235 U. S. 522. (2) It is shown that local union in suit is an aggregation of personal talents, which definition applies to an ordinary partnership as distinguished from an aggregation of capital, that the libelous publication complained of is leveled at the common name of the unincorporated branch as a unit of rights, in pursuance of a wrongful design to interfere with the carrying on of the scheme of the aggregation of talent in question, and , that as a result the partnership or unincorporated branch as a unit of right, and the personal right of each member in the branch has sustained and will continue to suffer serious injury and financial loss. The libel designated the aggregation of talents in suit as “an unfair bunch” of musicians. meaning an aggregation of tricky, dishonest men in character and in their acts and dealings doing business with men under the common name of the branch in suit. And is addressed to persons likely to deal with said unincorporated branch or aggregation of talents for the hire of music. (3) The law assumed that the aggregation of talents in suit associated together (as partners inter se se, Hammerstein v. Parsons, 38 Mo. App.' 332) actively carrying on a lawful business scheme for the benefit of its members, and that each member is the active agent and trustee for the association and for every member, for the purposes of actively carrying on the business scheme, as distinguished from members of mere aggregations of capital, e. g., as in the nature of joint stock companies. Adams Express Co. v. Railroad, 126 Mo. App. 475. (4) The law naturally assumes from the atti’ibutes of the local branch that it is a unit of vested rights in the same sense of an ordinary partnership, and naturally assumes that the branch was injured in its vested rights by the defamatory libel and that the resulting injuries created the right to monetary damages and other equitable relief in due course; and that the rights flowing from said wrong are vested in said local branch separate and apart from any rights which may have accrued to its members individually as partners inter se se. Newell, Libel and Slander "(3 Ed.), secs. 470, 472 et seq. (5) Restrictions upon the powers of a partner are not presumed and are matters between the members of the partnership; and restrictions can only be shown to have been imposed by articles of association or by separate contracts. 30 Cyc. 481, note 59; Bates v. Forcht, 89 Mo. 121; Murphy v. Cambden, 18 Mo. 122. And under the law of agency as applied to local branches any lawful or unlawful acts of a partner done in the line of his service, but without the express or implied consent of the other members-of the firm may be ratified by the other members of the firm and fix liability on the branch and its members jointly and severally. Loewe v. Lawler, 208 U. S. 274, 235 U. S. 522; Adams Exp. Co. v. Railroad, 126 Mo. App. 475. The rights of the local branch in suit acquired by the libel in question are primarily the rights of,the local branch as a unit of rights. 30 Cyc. 530, note 16; Beakes v. Cunha, 126 N. T. 293. Each member has implied authority to bind the local branch and every member thereof by contracts executed in the name of the branch and which are within the scope of the business of the branch (including such contracts as relate to the prompt suppression by due process of law- of extraordinary wrongs of the kind in suit). 30 Cyc. 481; Murphy v. Francisco, 65 Mo. 598. Each member is jointly and severally liable for a tort committed by the local branch, equally with the local branch. Rhodes Bros. v. Musicians Local Union No. 198, 37 R. I. 281; Lawler v. Loewe, 235 U. S. 522. (6) Plaintiffs in their representative capacity as agents and trustees set up in their instant petition a certain right which arises to the unincorporated St. Louis trades-union as a party plaintiff, namely, the right to institute civil actions in the proper courts of the State of Missouri for all proper relief for injuries naturally flowing to said local branch as a unit of rights from defamatory libels of the kind complained of. Tennessee v. Davis, 100 U. S. 257; In re Lennon, 166 U. S. 553; Constitution of Missouri, Art. 2, sec. 10.

      Frank K. Ryan for defendants in error.
    (1) The demurrers were rightfully sustained by the trial court, because the petition does not meet the requirement of Sec. 1733, R. S. 1909, by joining as plaintiffs therein all the parties that are united in interest in the matter set forth as a, cause of action in said petition. Secs. 1733, 1729, R. S. 1909; Miller v. Crigler, 83 Mo. App. 406; Kamerick v. Castleman, 23 Mo. App. 493; McLeland v. St. Louis Market Co., 105 Mo. App. 479; Lilly v. Tobbein, 103 Mo. 488; O ’Rourke v. Kelly, • 156 Mo. App. 95; State ex rel. v. Johnson, 25 Mo. App. 455; 24 Cyc. 829; McLoughlin v. Wall, 81 Kan. 206; Buckley v. Big Muddy Iron Co., 77 Mo. 107; Adams Express Co. v. Metrop. St. Ry. Co., 126 Mo. App. 475; Metrop. St. Ry. Co. v. Adams Express Co., 145 Mo. App. 375; Williams v. United States Express Co., 195 Mo. App. 365; Wilson v. Polk County, 112 Mo. 139. (2) The petition does not state facts sufficient to constitute a cause of action. Girard v. Breck, 3 E. D. Smith (N. Y.) 344; Ryckman v. Delevan, 25 Wend. 189; Dudley v. Briggs, 141 Mass. 582; Bradley v. Fuller, 118 Mass. 239; Democratic Publishing Co. v. Jones, 83 Tex. 652; Barbour on Parties (2 Ed.), p. 294; Newell on Libel and Slander (2 Ed.), sec. 21; State ex rel. v. Beardsley, 57 Mo. App. 574; Labor Review Co. v. Galliher, 153 Ala. 364; Watters,v. Retail Clerks’ Union, 120 Ga. '426.
   WHITE, C.

The defendants in this case filed a demurrer to the plaintiffs’ petition, which attempts to slate a cause oi action for libel. The demurrer was sustained : plaintiffs declined to plead further, judgment was entered on bc-half of defendants, and plaintiffs appealed.

The petition alleges:

“That plaintiffs are members of the American International Musicians’ Union, Local No. 2; that said local union is a voluntary benevolent association or trades-union; that the members of said union are too numerous to he joined as parties plaintiff herein; that plaintiffs bring this suit in a representative capacity, for the use and benefit of said voluntary trades union, under power and authority duly vested in said plaintiffs by their said voluntary trades union; that said voluntary trades union also operates under the name of St. Louis Local No. 2, American International Musicians’ Union, and has its office and place of business in the city of St. Louis in this State,, and that said union is a member of a certain national trades union known as the American International Musical and Theatrical Union, and which latter union is a corporation duly organized and existing under and by virtue of the laws of the United States.

“That the members of plaintiffs’ St. Louis Local Union No. 2, are all of . the same class and that eacli of them pursues his chosen calling as a musician for hire in the open market and subject to the rules and laws of said union, and with the aid of a certain trademark or working card duly issued to him by his said St. Louis Local Union No. 2, and which working card is hereinafter specifically described.”

Then follow allegations of the defendants’ membership in another association of musicians, and the petition proceeds:

“That plaintiffs’ St. Louis Local Union No. 2, by virtue of its said membership in said parent body hereinbefore referred to, is and was at the time of defendants’ wrongful and malicious acts, hereinafter referred to, the owner of a certain interest in and to a certain valuable property right, namely, the right to own and to hold and to use a certain device, trade-mark or working card, under the name and style of ‘Universal Working Card, American International Musical and Theatrical Union, Incorporated, St. Louis Local Union No. 2, American Musicians’ Union.’

“And by the terms of its said membership plaintiffs’ St. Louis Local Union No. 2, was vested with, and at all times exercised, the right to issue one of its said working cards to each one of its individual members in good standing; that its said property right runs with said right of membership and that said property right is forfeited by the loss of membership.

“That said membership of plaintiffs’ St. Louis Local Union No. 2, together with said property right which so runs with and is conditioned upon said membership in good standing in said incorporated parent body, is of the reasonable value of forty thousand dollars.

“That said membership and said property rights which so run with said membership are subject to forfeiture and loss in a proceeding .duly had before its said parent body upon trial and conviction of tricky, dishonest or unfair methods or practices in its business relations with any other association of musicians or workingmen, or in its business relations with employers of musicians or for wrongfully or negligently permitting its members to engage in tricky, dishonest or unfair transactions in their business dealings with employers of musicians.”

The petition then alleges that it was the purpose of the organization to which the defendants belonged, and of its individual members, to deprive the St. Louis Local Union Number Two, of which the plaintiffs were members, of their membership in their parent organization; and in pursuance of that unlawful design falsely and maliciously published of plaintiffs’ organization, by printed handbills, an alleged libelous article which is set out verbatim, in which the plaintiffs’ union was designated as an outfit of unfair musicians; that thereby it “was intended and meant to describe and designate, and was by the public understood to describe and designate, said American International Musical and Theatrical Union Local No. 2 as a voluntary association of musicians which existed and operated for unseemly and indecent, tricky and dishonest purposes, and had been guilty of unseemly, indecent, tricky and dishonest acts in its business relations with the public and was unworthy of the confidence and respect of the public for every purpose whatsoever, and in particular was unworthy of the confidence and patronage of all employers of musicians.” This publication was alleged to be false and libelous, to the injury of the American International Musical and Theatrical Union No. 2, in the sum of twenty thousand dollars. The plaintiffs prayed for judgment for twenty thousand dollars actual damages and twenty thousand dollars punitive damages.

I. Several grounds, are presented by the demurrer alleging affirmities in the petition, and among them:

That the plaintiffs had no legal capacity to sue. That the petition did not state facts sufficient to constitute a cause of action.

The local organization on behalf of which this suit was brought was not incorporated. There is some discussion in the briefs as to whether such an association could maintain a suit in. its own name. While there have been some decisions in this State to the effect that an unincorporated association could not bring suit in its own name, under the present statute it is probable that such a suit might be maintained. Unincorporated joint-stock companies have been recognized as entities entitled to sue and be sued in this State, within and governed by statutes relating to corporations. [Williams v. U. S. Express Co., 195 Mo. App. 362; State ex rel. v. Railroads, 196 Mo. 523, l. c. 536, 537.] Voluntary associations, like the one here considered, are by the statutes classed with joint-stock companies. Section 2963, Revised Statutes 1909, is as follows:

“The term ‘corporation’ as used in this chapter, shall be construed to include all joint-stock companies or associations having any powers or privileges not possessed by individuals or partnerships.”

Sections 2990 of that chapter provides that every corporation shall have power “to sue and be sued.” The language of Section 2963 in extending the privilea'es and obligations of corporations to other organizations describes those other organizations included within the provisions of the chapter, as “those having any powers or privileges not possessed by individuals or partnerships.” Some voluntary associations have such privileges which are given them by statute. Section 7109, Revised Statutes 1909, in defining a benefit association, declares it to be a “corporation, society or voluntary association, formed or organized and carried on for the sole benefit of its members and their beneficiaries, and not for profit,” and sets out certain privileges which such association may enjoy and powers it may possess. The Legislature evidently understood that such associations could be sued, for by the Act of 1915 they provided a method for service of process upon them the same as upon corporations. [Laws 1915, p. 225.] The allegation of the petition is that the local union on behalf of which this suit is brought is a “voluntary benevolent association or trades-union” (which, probably, would bring it within the terms of Section 7109), and that the parent organization is duly incorporated, although the local union on behalf of which the suit is brought is not. Now, if the local union has authority to sue and be sued in its own name then the suit is not prosecuted in the name of the real party in interest, as provided in Section 1729, Revised Statutes 1909.

II. Plaintiffs place their right to sue upon two grounds:

“First, that the members of said union are too numerous to be joined as parties plaintiff;

“Second, that plaintiffs bring this action in a representative capacity, for the use and benefit of said voluntary trades-union, under power and authority duly vested in said plaintiffs by their said voluntary trades union.”

This being an action at law, the suit could not be brought by plaintiffs for themselves, and all other persons similarly situated, as might be done in equity. [Lilly v. Tobbein, 103 Mo. l. c. 488-489.] There^ore> they had no right to bring the suit in their own names merely because the members of the union were “too numerous to be joined as parties plaintiff.” Organizations such as this union, for some purposes, are treated as partnerships; viewed in that light each individual member as a partner would have to be made a party. [Kuehl v. Meyer, 50 Mo. App. 648; State ex rel. v. Railroads, 196 Mo. l. c. 536.]

The second ground is available only if plaintiffs bring themselves within the terms of Section 1730, Revised Statutes 1909, as trustees of an express trust. The Legislature evidently intended the expression “trustee of an express trust” to have a strict technical meaning; for they found it necessary to enlarge it by including “one in whose name a contract is made.”

There is no contract in the name of the plaintiffs in this case; it is not a suit which has any relation to a contract. They couldn’t sue as a mere friendly act, nor as the authorized agents of the other members, because in that case the suit would not be in the name of the real parties in interest. [State ex rel. v. Hawes, 177 Mo. l. c. 380-381.] It is possible that an assignment of the cause of action, though in tort, for valuable consideration, would permit plaintiffs to sue. [Snyder v. Ry. Co., 86 Mo. 613; Remmers v. Remmers, 217 Mo. l. c. 561.] But there is no allegation of such an assignment.

The express trust which would authorize the trustee to sue must he a formal one, such as is defined by Section 2868, Revised Statutes 1909. [State ex rel. v. Hawes, 177 Mo. l. c. 380-1; Harris Banking Company v. Miller, 190 Mo. l. c. 665; Carroll v. Woods, 132 Mo. App. 501.] That section applies only to real estate; a trust in personal property may he created and proved by parol. Nevertheless a parol trust must he clear and definite in its terms; there must he a definite subject, a definite object and a definite purpose of the trust. [Northrip v. Burge, 255 Mo. l. c. 654; Carroll v. Woods, 132 Mo. App. l. c. 501; Pitts v. Weakley, 155 Mo. l. c. 135.] What is the subject-matter of the trust in this case? The allegation of authority to sue is not in connection with any property or right. The property right mentioned in another part of the petition, the interest in a trade mark, is not by any allegation connected with a right to sue. It is not alleged that title to any property ria'ht is vested in the plaintiffs as trustees. There is no allegation showing a trust of which plaintiffs are trustees. [Kuehl v. Meyer, 50 Mo. App. 648; 35 Mo. App. 206.] The averment of authority to sue in a representative capacity does not state in what sort of representative capacity they may act. It is had on demurrer, because it fails to allege the facts which would confer such authority. [Wilson v. Polk Co., 112 Mo. 126, l. c. 138; Hoester v. Sammelmann, 101 Mo. 619.]

It is difficult to see how it would be possible for the individual members of the union, or the union itself, to authorize some individuals to sue for the damages threatened or inflicted, or for any damages caused by a libel of the members or libel of the order.

Other objections are presented to the petition which, in view of the ruling above, it is unnecessary to consider. The demurrer was rightly sustained.

The judgment is affirmed.

PER CURIAM: — The foregoing opinion by White,

0., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    KATE FINNERTY v. JOHN S. BLAKE & BROTHER REALTY COMPANY, EDWARD W. FORISTEL and THOMAS FINNERTY, Appellants.
    Division Two,
    December 23, 1918.
    1. MORTGAGE: Validity: No Existing Debt. A conveyance of real property by a mortgage, or a deed, of trust in the nature of a mortgage, can only be effective as such when made to secure a preexisting, then-created, or after-arising obligation, or the performance of some duty entailing a pecuniary liability.
    2. -: To Secure Note of One of Grantors. Where notes were signed by a husband alone, and the deed of trust tp secure them was signed by both husband and wife and recited that both were indebted to the payee in the sums named in the notes, and the payee indorsed the notes in blank without recourse and without any money being paid, turned them over to the husband, who on the day of their maturity indorsed thereon an extension and after they < were again indorsed without recourse by the payee sold them to third parties,'the deed of trust was not effectual to convey the wife’s interest in the land, because she was not indebted to the payee, there was no existing debt, and the general language of the deed of trust which purported to transfer her interest to the trustee was ineffectual to create a debt.
    3. " -:-: Intention to Sign Note: Parol Evidence to Explain. Parol proof to show that a note in evidence is the same as that ¿^escribed in a deed of trust, despite a marked variance between the original and its description, is admissible to remove uncertainties in the note as described, but not to reform the note and make a different contract, or to change a note correctly described in the conveyance as to the name of the maker into a note intended to .be signed by his wife.

      Appeal from St. Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge.
    Affirmed.

      Frank H. Haskins for appellants.
    (1) In the case of variance between the note produced and the note described in the deed of trust it is competent to show by parol evidence that the note produced is the one intended to be secured. Moore v. Russell, 133 Cal. 297; Yolmer v. Stagemann, 25 Minn. 234; Williams v. Hilton, 35 Me. 547; Johns v. Church, 12 Pick. 557; McFadden v. State, 82 Ind. 558; Lee v. Fletcher, 46 Minn. 49; Thompson v. Cobb, 95 Tex. 140; St. Lawrence v. Farmer, 66 N. Y. Supp. 584; Baxter v. McIntyre, 13 Gray, 168; Tousley v. Tousley, 5 Ohio St. 78. (2) A wife who mortgages her property for a debt of her husband is a principal debtor and not a surety; therefore an extension of the note, even if made by a valid contract and for valuable consideration, will not release her property from liability under the mortgage. Phil. Savings Fund v. Lasher, 144 111. App. 653; Alexander v. Bouton, 55 Cal. 15. (3) Even if plaintiff, Kate Finnerty, was in reality only a surety as between herself and her husband, yet, as to defendant she was a principal by reason of her recitals in the mortgage signed by her, that she and Thomas Finnerty were “justly indebted to the party of the third part for borrowed money in the sum of six thousand dollars.” And she is now estopped to deny that she was a principal or to claim that the debt was for the sole benefit of her husband. McMillan v. Parkell, 64 Mo. 286; California National Bank v. Ginty, 108 Cal. 148; Picot v. Signiago, 22 Mo. 587; Brown v. Ligón, 92 Fed. 851; Sprigg v. Bank, 10 Peters', 257; Menaugh v. Chandler, 89 Ind. 94; Long v. Crosson, 119 Ind. 3; Reed v. Cramb, ^111. App. 40.

      T. J. Rowe for respondent.
    (1) A mortgage of a wife’s land which is void as to the wife, is void also as to the husband. Wannall v. Kem, 51 Mo. 150. (2) “A mortgage cannot spring up without an existing debt, enforceable at law, to which the mortgage becomes a security. Under this rule the debt must first be sought out as substance, the tree trunk; the mortgage becomes an incident to that sub- . stance, the shadow to that trunk! There must, then, be found a mortgage in contemplation of law. So that, to the maxim, once a mortgage, always a mortgage, there must be added another, viz., no debt, no mortgage.” Donovan v. Boeck, 217 Mo. 87. Citing: Conway’s Executors v. Alexander, 7 Cranch, 218; Desloge v. Ranger, 7 Mo. 327; Slowey v. McMurrav, 27 Mo. 113; Turner v. Kerr, 44 Mo. 429; Bobb v. Wolff, 148 Mo. 335; Dunaway v. Day, 163 Mo. 415; Bailey v. St. Louis Union Trust Co., 188 Mo. 486; Powell v. Crow, 204 Mo. 481. There can be no deed of trust if there is no debt. The evidence in this case establishes the fact that there was no debt such as is described in the deed of trust, or any other kind, and that therefore there can be no valid deed of trust. (3) The debt intended to be secured by the deed of trust must be described in the deed of trust i or the party to thq deed of trust must be able, by parol .evidence, to prove a debt which the parties at the time intended to secure by the deed of trust, and no such debt as the indebtedness evidenced by Thomas Finnerty’s individual note for $6000, dated April 1, 1908, is described in the deed of trust, and there was no proof at the trial of the case that the deed of trust was intended to secure any indebtedness of Thomas Finnerty; and there being in fact no debt, the deed of trust itself became void.
   WALKER, P. J.

This case, upon its submission, was regularly assigned to Commissioner Rot, but an opinion therein was not prepared by him on account of iliness.

This is an action in equity brought by the respondent to enjoin the sale of certain real property in the city of St. Louis, under a deed of trust executed by the respondent and her husband, Thomas Finnerty.

A temporary injunction was granted by the trial court, which upon a hearing was made perpetual, enjoining appellants from selling the right, title and interest of respondent in the real estate described, and decreeing the deed of trust null and void as against her interest.

The property in question was conveyed on February 10, 1908, by,John Finnerty and wife to Thomas Finnerty and wife. On April lj 1908, Thomas Finnerty and the respondent, his wife, executed a deed of trust on the property to Gustave Dammert, trustee, party of the second part and Lillie Willemsen, party of the third part, to secure a note for six'thousand dollars, dated April 1, 1908, payable to the order of Lillie Willemsen three years after date, together with six interest notes for one hundred and fifty dollars, each payable respectively in 6, 12, 18, 24, 30 and 36 months after date. There was no consideration for these notes. The deed of trust was signed by Thomas Finnerty and Kate Finnerty; the notes were signed by Thomas Finnerty alone. The deed of trust in describing the notes recites that Thomas Finnerty and Kate Finnerty were indebted to the'payee in the note in the sum of six thousand dollars for borrowed money. Upon the deed of trust and notes being executed, and the latter endorsed in blank, without recourse, by Lillie Willemsen, they were turned over to Thomas Finnerty. He had the deed of trust duly recorded. Thereafter, the notes and deed of trust continued in his manual possession, and under his legal control, until the maturity of the notes, in April, 1911, when he caused, an extension to be written upon the back of the principal note for five years from April 1, 1911, provided ten interest notes, each for one hundred and fifty dollars executed by him and payable to the order of Lillie 4 Willemsen every successive six months thereafter, were paid when due. These extension interest notes were also endorsed in blank by Lillie Willemsen without recourse, and returned to Thomas Finnerty, and, with the principal note and deed of trust, continued in his possession and under his control until October 16, 1911, when he purchased from one J. N. Crebs a saloon and contents, including the leasehold on the corner of Ninth and Locust Streets, City of St. Louis, for the sum of six thousand dollars paying for it in monthly notes of one hundred and twenty-five dollars each, signed by Thomas Finnerty and payable to the order of J. N. Crebs. To secure these monthly notes, Thomas Finnerty pledged to Crebs, as collateral, the six-thousand-dollar Willemsen note and the deed of trust securing the payment of said note, and executed to Crebs an agreement, authorizing him, upon default in the payment of any of the monthly notes, to sell the collateral, either with or without notice.

Thomas Finnerty, thereupon, took possession of the saloon, operated it,, and paid a number of the monthly notes as they became due. Crebs thereafter sold the unpaid notes to appellant John S. Blake & Brother Realty Company (hereinafter designated as Blake & Brother) for approximately their full value, to-wit, about four thousand dollars, and transferred to them the Willemsen six-thousand-dollar note and deed of trust and the contract pledging same to secure the payment of the unpaid monthly notes.

In March, 1913, after the transfer to Blake & Brother, Thomas Finnerty defaulted in the payment of the monthly notes; and upon written notice to him of their intention, in accordance with the terms of the pledge agreement, Blake & Brother advertised and sold at public sale the six-thousand-dollar note and deed of trust, and at said sale became the purchasers of same for the sum of twenty-five hundred dollars.

On November 28, 1913, the trustee,' Gustave Dammert, having refused to further act' as such, appellant Edward W. Foristel was by the circuit court \ appointed as his successor, and proceeded to advertise * for sale the real estate described in the deed of trust which purported to secure the payment of the Willemsen $6000 note.

Eespondent, Kate Finnerty, thereupon brought this action in the circuit court of the city of St. Louis, asking that the appellants herein be enjoined from selling her interest in the property described in the deed of trust, and that the same be decreed to be null and void, with the result before stated.

Other than as indicated by the language of the deed of trust, there is no evidence that respondent had any knowledge of the making of the $6000 note by her husband to Lillie Willemsen, or of any of the subsequent transactions which culminated in the transfer of the note and deed of trust to Crebs. Thomas Finnerty testified that he never discussed the matter with his wife as to the making of the Willemsen note, its extension, or the subsequent pledging of same to Crebs. Out of these facts arise the diverse contentions of the parties. They are acute and may be briefly stated.

Appellants contend that the Willemsen note signed by Thomas Finnerty alone was intended to be signed by the respondent as well. First, because of the purpose for the making of the instrument, indicated by its terms; second, because of its employment in the note of the personal pronoun “we,” preceding the promise to pay; third, the description of the note in the deed of trust as the undertaking of Thomas Finnerty and Kate Finnerty; and fourth, the conveyance of their land jointly owned to secure the payment of the note.

Eespondent’s contentions are, first, that she executed the deed of trust at the request of her husband to assist him at that time in engaging in business; second, that there was no debt then created or preexisting, the payment of which the deed was given to secure; and, third, that she neither made nor intended to make a note at that time; and that she had no knowledge of the extension of the time of payment of the notes by her husband and of their having been pledged by him three years later with the deed of trust to secure the payment of the obligations incurred by him in the purchase of the saloon from Crebs.

A conveyance of real property by a mortgage or deed of trust in the nature of a mortgage, can only be effective as such when made to secure a pre-existing, then created or after-arising obligation, or the performance of some duty entailing a pecuniary liability. ' Absent, therefore, the existence of a debt and the necessary consequent relation of debtor and creditor between the grantor and the grantee there can be no mortgage or deed of trust. [Sheppard v. Wagner, 240 Mo. l. c. 433.] The deed of trust in controversy, while possessing all of the formal requisites of a conveyance to secure the payment of what purported to be the joint debt of the respondent and Thomas Finnerty, discloses that the note was the obligation of Thomas Finnerty alone. Therefore, whatever binding force the conveyance had in securing the payment of the debt evidenced by the note, was limited to his interest in the real estate described and not to that of the respondent. This, because it was not ner debt; the general language of the conveyance which purported to transfer her interest to the trustee was ineffectual to create a debt in being based upon no consideration. This conclusion finds its support in the assumption that the note was correctly described, as to. the name of the maker, in the conveyance. This assumption became an established fact upon the production in evidence of the original note showing it to have been signed by Thomas Finnerty alone. In the presence of this affirmative showing, and the absence of any evidence of the creation, or of a purpose of the respondent, to create a present or future liability, the appellants were not authorized merely by reason of the language of the deed of trust and its formal execution by the respondent, in attempting to subject her interest in the real property to sale to satisfy the note.

We have no fault to find with the correctness of the rule announced in the cases cited by appellants as to the admissibility of parol proof to show that a note produced in evidence is the same as that described in a mortgage or deed of trust, despite a marked variance between the original and its description. All of these cases, and their name is legion, go to the removal of uncertainties in notes as described and not to the reforming of originals, which is a necessary consequence flowing from appellants’ contention in the case at bar. The admission of evidence of the character authorized by these cases well comports with a fair administration of justice in assisting in determining the intention of -the parties and thus correctly fixing the limit of liability. But the courts, have gone no further.

Pecuniary liabilities of litigants can not be determined upon assumptions, but must be supported by facts. To sustain appellants’ contention, it is not only necessary to assume, in the absence of any evidence to that effect, that it was the intention of respondent jointly with her husband to make the note, but as a consequence of this assumption that a debt was created, for which there appears to have been no consideration. No case has ever gone to this extent.

The judgment of the trial court is, therefore, affirmed.

All concur.


author: WILLIAMS, J.

text:
    THE STATE v. STEVE REEVES and ODIE REEVES, Appellant.
    Division Two,
    December 23, 1918.
    1. INDICTMENT: Charged As Principal and Accessories. Under the statute (Sec. 4898, R. S. 1909) an accessory before the fact “may be charged, tried and convicted and punished, as the principal in the first degree,” and therefore the necessity for formally, charging defendants both as principals and as accessories before the fact does not appear.
    2. FORMER ACQUITTAL: Three Counts: Conviction and Reversal Under First: Verdict Silent Under Others. Bach of three counts of the indictment charged the commission of the same crime. The first count charged both defendants of murder as principals, and the second and third charged each respectively as principal and as accessory before the fact. Upon the first trial both were found guilty of murder in the second degree under the first count, but the verdict was silent concerning their guilt under the second and third. They appealed and the judgment was reversed and the cause remanded. Held, that where a defendant is tried upon an indictment in three counts, each charging the same crime, and the jury returns a verdict of guilty under'the first count but is silent as to the other two, there is no such implied acquittal, after the judgment is reversed and the cause remanded, as entitled defendant to be discharged. Silence of the first verdict as to the second and third count did not amount to an acquittal under those counts [Distinguishing State v. Headrick, 179 Mo. 300.]
    3. SUFFICIENT EVIDENCE: Conflict: Demurrer. If the evidence is sufficient to submit the question of a defendant’s participation in the homicide to the jury, a demurrer thereto should not be sustained, however strong and sharp the conflicting evidence may be.
    4. CROSS-EXAMINATION OF DEFENDANT: Preservation for Review. Unless the motion for a new trial complains that the court erred in permitting the State to cross-examine defendants on matters upon which they were not examined in chief, the assignment will not be reviewed upon appeal.
    5. EVIDENCE: Uncommunicated Statements. It was not error to refuse an offer to prove that about thirty days prior to the homicide deceased had said to a third party that he had been having sexual intercourse with defendant’s sister, where the statement contained no threats and it does not appear that it was ever communicated to defendants.
    6. INSTRUCTION: Manslaughter: Provocation: Words: Threatening Acts. Mere words or threatening actions are not sufficient provocation for the heat of passion which reduces murder to manslaughter. Therefore where there are no facts to remove the case from the , operation of this rule, an instruction for manslaughter in the third degree which does not require the jury to find the heat of passion necessary to reduce the crime from murder to manslaughter is not erroneous.
    7. -: Inclusion of Elements of Manslaughter in Third and Fourth Degrees. Defendants cannot complain that an instruction is sufficiently broad to include within its terms elements of manslaughter in the third degree as well as elements of manslaughter in the fourth degree, if it confines any conviction thereunder to the smaller offense.
    8. VERDICT: Several Counts: General Verdict. Where the several counts in the indictment charge the same crime of murder in the second degree a general verdict finding defendant guilty of murder in the second degree, without specifying the count, is sufficient.

      9. -: Definite and Responsive to Charges. A verdict to be valid • must be definite and certain and also responsive to the charges. Therefore a verdict finding “Steve Reeves'guilty of murder in the second degree” and fixing his punishment at ten years’ imprison-, ment and “the defendant Odie Reeves guilty of being an accessory to the crime” and fixing his punishment at three years’ imprisonment, is insufficient as to Odie Reeves, because it'does not express an intention to find him guilty of murder in the second degree or of being an accessory before the fact, and 'did not authorize, the court, on the assumption that the jury had found him guilty of murder in the second degree, to change the punishment to ten years’ imprisonment, the minimum penalty, and is too uncertain to support any judgment.
    Appeal from Mississippi Circuit Court. — Hon. E. M. Hearing, Special Judge.
    Affirmed (iu part) and reversed and remanded (in part.)

      Haw S Brown and Bussell & Joslyn for appellants.
    (1) The court erred in sustaining the demurrer to the evidence on the plea in bar, -which was filed by defendants before they went to trial on the merits of the cause. Under the law a verdict of guilty on one count is an acquittal as to all other counts. State v. Brotzer, 245 Mo. 513; State v. Hess, 240 Mo. 161; State v. Grace, 230 Mo. 705; State v. Headrick, 179 Mo. 300; State v. Patterson, 116 Mo. 511; State v. Whitten, 68 Mo. 95; State v. McCue, 39 Mo. 112; State v. Kattleman, 35 Mo. 106; State v. Polk, 144 Mo. App. 326; State v. Hale, 141 Mo.. App. 701. By the same verdict Steve Reeves was convicted of exactly the same offense on the first count of which he was acquitted under the second count, and Odie Reeves of the same offense of which was acquitted on the third count. The verdicts finding defendants guilty and not guilty of the same offense entitled them to their discharge without further trial. State v. Headrick, 179 Mo. 300; R. S. 1909, sec. 4907. (2) It was reversible error for the court to exclude the statements made by L. B. Pritchard in the presence of Mike Riley and Boy Henderson, as these statements not only showed the language that deceased had used about defendants’ sister, but also tended to show that the deceased was courting trouble with the Reeves boys and was prepared therefor. Such testimony is admissible for the purpose of throwing light upon the acts and conduct of deceased at the time of the difficulty and to show who was the probable aggressor in such difficulty. State v. Edwards, 203 Mo, 546; State v. Kelleher, 201 Mo. 636; State v. Bailey, 94 Mo. 316; State v. Elkins, 63 Mo. 164. (3) Defendants were entitled to .an instruction that would permit the jury to convict of manslaughter in the third degree if the sudden heat of passion was aroused by a reasonable provocation, whether by striking, attempting to strike or otherwise, and the blow that caused death was struck without a design to kill. State v. Hanson, 231 Mo. 29; State v. Lane, 158 Mo. 572; State v. Elliott, 98 Mo. 150. Instruction 6 is subject to the objection that it precludes the jury from finding defendants guilty of manslaughter in the third degree because its terms are broad enough to include an assault without design to kill, describe the same method of killing as described in instruction 5, and require the jury to find defendants guilty of manslaughter in the fourth degree, unless they find that the killing was done in self-defense. Giving such contradictory and inconsistent instructions is reversible error. State v. Herrell, 97 Mo. 110; State v. McNally, 87 Mo. 658; State v. Simms, 68 Mo. 309; State v. Mitchell, 64 Mo. 191; State v. Fellers, 140 Mo. App. 723; Kelley’s Criminal Law and Procedure (3 Ed.), sec. 393, p. 340. (4) No proper or legal verdict was returned by the jury and it was error for the court to change the verdict as returned or to render any judgment thereon or to assess any punishment against Odie Reeves thereunder. Some of the instructions in this cause did not confine the jury to the first count of the indictment and the verdict does not specify the count under which defendants are found guilty. It also amounts to a special finding in . stating that Odie Reeves is found guilty of being “an accessory to the crime” and is not responsive to the charge contained in the indictment or to the instructions: For these reasons no judgment could properly be based thereon. State v. Grossman, 214 Mo. 241; State v. Modlin, 197 Mo. 379; State v. DeWitt, 186 Mo. 68; State v. Jones, 168 Mo. 403; Stale v. Rowe, 142 Mo. 439; State v. Pierce, 136 Mo. 40; State v. Holland, 162 Mo. App. 681; State v. Pollock, 105 Mo. App. 278.

      Frank W. McAllister, Attorney-General, and Shrader P. Howell, Assistant Attorney-General, for respondent.
    (1) Examination of the record will disclose that the facts set out and the essence of the crime charged in count one, on which defendants were tried and convicted, differ from that found in counts two and three, and therefore the second trial on count one does not constitute former jeopardy. State v. Whitten, 68 Mo. 91; State v. Foley, 247 Mo. 633; State v. Laughlin, 180 Mo. 343; State v. Hess, 240 Mo. 158; State v. Burgess, 268 Mo. 420. (2) The plea of former jeopardy will not avail when a new trial is obtained at the instance of defendants. State v. Patterson, 88 Mo. 88; Sec. 23, Art. 2, Mo. Constitution; State v. Hays, 78 Mo. 605; State v. Goddard, 162 Mo. 198; Wharton’s Criminal Law, p. 35. (3) Where the punishment assessed by the jury is below that authorized by statute for the crime for which the defendant is found guilty, the court has authority to fix the minimum penalty. Secs. 5254 and 5255, R. S. 1909; State v. Taylor, 261 Mo. 225; State v. McDonough, 232 Mo. 280; State v. Thornhill, 174 Mo. 372. By statutory provisions an accessory to the crime of murder is equally guilty and subject to the same punishment as the principal. Sec. 4898, R. S. 1909; State v. Lawson, 239 Mo. 601; State v. Sykes, 191 Mo. 68; State v. Yan Wye, 136 Mo. 243; State v. King, 194 Mp, 485. (4) Mere words of reproach,- actions or gestures unaccompanied by personal violence are insufficient to reduce murder to manslaughter. State v. Fletcher, 190 S. W. 322; State v. Finley, 183 S. W. 298; State v. Barrett, 240 Mo. 169; State v. Schuster, 183 S. W. 298. (5) The slanderous statements alleged to have been made by deceased out of the presence of the defendants relative to their sister were obviously not admissible. State v. Barnett, 240 Mo. 101; State v. Greaves, 243 Mo. 540; State v. Fletcher, 190 S. W. 323; .State v. Hale, 238 Mo. 512.
   WILLIAMS, J.

Upon an indictment charging them with murder in the first degree, for the killing of one L. B. Pritchard, defendants were tried in the circuit court of Mississippi County, found guilty of murder in the second degree (except as to defendant. Odie Reeves, which will be discussed at length in the opinion) and each sentenced to ten years’ imprisonment.

Defendants duly appealed. This is the second ap' peal in the cause. ' The opinion upon the first appeal will be found reported in 195 S. W. 1027, wherein a full statement of the facts are set forth.

The indictment was in three counts and was the same upon both trials. Since upon the first trial- a co-defendant, Devo Ross, was acquitted, we will refer to the indictment as though Ross were not named therein.

Each count of the indictment charges the defendant with murder in the first degree for the killing of said Pritchard. The first count charges that defendant Steve Reeves assisted in committing the murder by use of a “wooden stick four feet long, three inches wide and one inch thick, of the weight of about four pounds,” and that defendant Odie Reeves likewise assisted by the use of “an instrument about the length of sixteen inches and the width of two inches and the thickness of one inch and of the weight of two pounds, of some hard substance and material, the exact kind to this grand jury unknown.”

The second count charges that defendant Steve Reeves committed the murder by use of the above mentioned four-pound wooden stick and that defendant Odie Reeves was present, inciting, aiding and commanding Steve Reeves to commit said murder.

The third count charges that defendant Odie Reeves committed the murder by use of said unknown two-pound instrument and that defendant Steve Reeves was present, inciting, aiding and commanding Odie Reeves to commit said murder.

Upon the first trial the present defendants were found guilty of murder in the second degree under the first' count, but the verdict was silent concerning the second and third counts. The judgment upon that verdict was reversed and the cause was remanded upon the first appeal. The verdict upon the second trial was for murder in the second degree (except as hereinafter explained), without referring to either count of the indictment.

Before the second trial was begun the defendants, by leave of court, filed a plea in bar setting up the claim of former jeopardy. It is unnecessary to set forth in full the allegations of the plea in bar. In substance it may be said to have presented the contention that since each of the three counts charged the same offense and since the verdict of guilty on the first count upon the first trial amounted to an acquittal on the second and third count, therefore, having once been acquitted of the offense, they could not again be tried therefor, but were entitled to be discharged.

The State filed a demurrer to the plea in bar, which was sustained.

Such further facts as shall be necessary to an understanding of the points now under review will be mentioned in the course of the opinion.

I. Appellants’ main contention for a reversal is that the court erred in sustaining the demurrer to their plea of former acquittal.

It will be seen by reference to tbe indictment that each of tbe three counts charge the commission of the same crime. The first count charges each as principal and the second and third count charges each respectively as principal and as accessory ^ ^ The real ■ necessity for formally charging the defendants as accessories before the fact does not appéar, since under the present law' in this State such accessory “may be charged, tried and convicted and punished in the same manner, as the principal in the first degree.” [Sec. 4898, R. S. 1909.]

But whatever may have been the purpose of the pleader it is immaterial here. We merely mention the foregoing rule to show that there can be no doubt but that the identical • crime was charged in each of the three counts.

The exact legal question which the present case presents is this: When a defendant is tried upon an indictment in three counts, each charging the same crime, and the jury returns a verdict of guilty under the first count but is silent as to the two .remaining counts, is there in law an implied acquittal upon the remaining counts and if so does such imnlied acquittal (after the judgment, upon appeal by defendant, has been reversed and the cause has been remanded), entitle the defendant to be discharged on the theory that he has been once acquitted of the crime for which he is again sought.’to be tried?

We have reached the conclusion that the above question must be answered in the negative.

Appellants contend that the silence of the verdict upon the first trial concerning the second and third counts (there having been an express verdict of guilty on the first count), amounted to an acquittal upon said counts, and that therefore this case should fall within and should be controlled by the rule announced in the case of State v. Headrick, 179 Mo. 300. That case in effect held that under an indictment in two counts (each count charging the same crime), the express verdiet of not guilty under the second count was a bar to the enforcement of an express verdict of guilty under the first count, and that the defendant should be discharged.

Whether the Headrick case was correctly ruled we are not now called upon to decide. It will be sufficiently timely to re-examine that case when the precise question there ruled is again presented and directly involved in the determination of a case. The fact that there was an express verdict of acquittal in that case, while, in the present case there was not, sufficiently distinguishes the two cases to relieve the Headrick case from serving as a useful precedent in the instant case.

It occurs to us that the principal error in appellants’ contention in the case at bar is in assuming that the silence of the first verdict as to the second and third counts, amounted to an acquittal under those counts.

It is true, that appellant cites cases from this State using the general language that a verdict under one count amounts to an acquittal upon the remaining counts concerning which the verdict is silent. And such appears to he the general rule applicable in most states. But nowhere have we been able to find that the above general rule has ever been applied (certainly not expressly applied) to a situation where the separate counts charge the same crime.

The present point (as far as our research has extended) does not appear to have been frequently treated.

The only case, which we have been able to find, which discusses' the exact point now under review is the case of Brown v. United States, 2 Ind. Ter. 582. In that case the rule, which we think is the correct one and here applicable, was stated as follows:

“If an indictment contain more than one count and different offenses are set up in the different counts, then, on conviction on one, and silence by the jury as to the other, the defendant stands acquitted as to the counts not mentioned in the verdict, and as to those counts a pleá of former jeopardy will he sustained, even though on the motion of the defendant the verdict of guilty on the count upon which he was convicted be set aside, and a new trial granted. In such case he can only be again put upon his trail on the count of the indictment upon which he had been convicted. But, when the different counts are simply formal variations in stating the same offense, then the granting of a new trial opens the whole case, and the defendant may be put upon his trial, and convicted upon any of the counts.” [Id. l. c. 590-591.]

Any other view would, to our mind, lead to an absurdity. It would amount to saying that the mere, inference of acquittal arising from'the silence of the verdict as to certain counts was strong enough to overcome a verdict of guilty finding expressly to the contrary under a count charging the identical crime.

Under the facts stated in the plea in bar in the present case the silence of the first verdict as to counts two and three did not therefore warrant an inference of acquittal or amount to a verdict of acquittal thereunder. Since this is true, the plea in bar failed to state facts sufficient to show a former acquittal of the defendants, and the demurrer thereto was properly sustained.

II. It is contended that the court erred in failing to sustain a demurrer to the evidence as to defendant Odie Reeves. In this behalf it is insisted that there is no evidence to show that Odie Reeves struck deceased. We are ;unable to agree with this contention. Witness Tom Bird testified that at the invitation of Odie Reeves, Steve, Odie and himself were in the building to overhear an expected conversation between Pritchard (deceased) and Ross. That, shortly afterwards, Ross and Pritchard had the conversation and immediately thereafter ' Odie and Steve rushed together out of and around the corner of the building. That instantly he heard a lick struck and immediately thereafter “they came around in front of the door fighting and somebody struck Pritchard and he fell.” This witness further testified that, while he was not' sure, he thought he saw Odie pick up, in the corner of the building as he rushed out of the door, a round ash stick about the size of a small hoe handle and that whoever struck Pritchard the second time “struck him with something like a hoe handle.”

Witness Glen Pritchard testified that he reached the door of the building and looked in just before Steve Reeves and another man (whom the witness was unable then to identify in the dark) rushed out of the door towards the deceased; that he saw Steve strike his brother (the deceased) but his brother knocked the lick off; the weapon used looked like a piece of “two-by-four.” The witness then proceeds: “the other party rushed out close on behind Steve and my brother was gettingup and he struck him in the head. This party had something small in his hand that looked like it was a foot and a half or two feet long; that looks like the same instrument; . . . after the last blow was struck they run south towards their home.”

It was true there was strong evidence in sharp conflict with the .above, but the foregoing was sufficient to submit to the jury the question of Odie’s participation in the killing.

III. It is further contended that the court erred in permitting the State to cross-examine the defendants on matters upon which they were not examined in chief. this it is sufficient to s^y that the same is nowhere mentioned in or included within the allegations of the motion for a new trial, and it is therefore not properly preserved for appellate review. Furthermore we might say, in passing, that our examination of the record does not disclose any error of this kind which would, even, if properly preserved, warrant a reversal of the ease.

IV. Defendants offered to prove by witness Henderson that about thirty days prior to the killing, L. B. Pritchard (the deceased) told Mike Riley that he had been having sexual intercourse with defendants’ sister; that in reply Mr. Riley said: “You had better stop telling that; if old man Dave Reeves hears it, he’ll kill you;” and that thereupon Pritchard replied: “I don’t give a dam about the Reeves knowing it; I’m not afraid of them; they won’t hurt me.” The court excluded the offer.

We are unable to discover wherein the above ruling was error. It does not appear that the statement had ever been communicated to defendants and that therefore it might have been admissible as explaining the purpose of defendants’ presence at the scene of the killing. Neither was the statement a threat, and therefore admissible to show who was the probable aggressor.

V. Appellants complain that the instruction on manslaughter in the third degree was erroneous in that it precluded the jury from finding that the “heat of passion” necessary to reduce the crime from murder to manslaughter might have arisen from the worcjg or threatening attitude of the deceased. It is the well-established general rule in this State that mere words or threatening actions do not supply sufficient provocation for the heat of passion which reduces murder to manslaughter. [State v. Sebastian, 215 Mo. 79; State, v. Myers, 221 Mo. l. c. 620; State v. Barrett, 240 Mo. 160, l. c. 171; State v. Finley, 245 Mo. 465, l. c. 476.] There are no facts in the present record which would remove this case from the operation of the above stated general rule.

VI. The instruction on. manslaughter in the fourth degree was ás follows:

“The court instructs the jury that if you believe and find from the evidence that the defendants at the County of Mississippi and State of Missouri, on the ,15th day of October, 1915, or at any time within three years next before the filing of the indictment ^ere^nJ which was filed on the 20th day of October, 1915, killed L. B. Pritchard by beating him on the head and body with a stick or stick of wood or other instruments, and that such instrument was a dangerous and deadly weapon, while defendants were in a violent passion, suddenly arotised by dedeceased having struck defendant Steve Reeves with his hand or-fist, or if you find and believe from all the facts and circumstances in evidence in this case that either one of the defendants, on or about the 15th of October, 1915, in Mississippi County, Missouri,' in the manner and by the means defined in this instruction, did kill L. B. Pritchard, and that the other defendant was willfully present at such killing, advising or encouraging the same, you cannot find defendants guilty of" murder in either degree, for in that case the law presumes that such beating and killing were not done of defendants’ malice, but by reason of such passion. On the other hand, although you may believe from the evidence that defendants beat and killed L. B. Pritchard while defendants were in violent passion, suddenly aroused by a blow from the deceased, yet, if you shall further find from the evidences that such beating and killing were not done in self-defense, as hereinafter explained, you will find the defendants guilty of manslaughter in the fourth degree and assess their punishment at imprisonment in the penitentiary for a term of two years, or by imprisonment in the county jail for not less that six 'months nor more than twelve months, or by a fine not less than $500, or by both a fine not less than $100 and imprisonment in the county jail for not less than three months nor more than twelve months.”

Appellants contend that the above instruction permits the jury to find the defendants guilty of manslaughter in the fourth degree upon the same facts which would permit them under another instruction to find them guilty of manslaughter in the third degree.

It does appear that the instruction (when carefully read) is sufficiently broad to permit the inclusion within its terms of the elements of manslaughter in the third degree as well as the elements of manslaughter in the fourth degree, but since by the terms of the instruction, any conviction thereunder was confined to the lesser offense, to-wit, manslaughter in the fourth degree, it would appear that instead of the instruction being prejudicial it was beneficial to defendants.

Had the instruction permitted the jury to find defendants guilty of manslaughter in the third degree, then quite a different situation would be presented because in that event defendants might have undergone the danger of being convicted of the greater offense upon a finding of the facts which would only justify a conviction of the lesser offense.

• For the foregoing reasons we hold that instruction was erroneous. We are of the opinion that the error was not prejudicial.

VII. The jury returned the following verdict:

“We the jury, in the case of State of Missouri v. Odie Reeves and Steve Reeves find the defendant, Steve Reeves, guilty of murder in the second degree and fix his punishment. at ten years in the penitentiary, and we find the defendant, Odie Reeves, guilty of being an accessory to the crime and fix his punishment at three years in penitentiary.”

Thereafter (and on the theory that the jury had found Odie Reeves guilty of murder in the second degree, and had therefore erroneously fixed his punishment at three years), the court (attempting to exercise the authority granted under Section 5255, Revised Statutes 1909) made an order fixing the punishment of Odié Reeves at ten years’ imprisonment in the penitentiary, the same being the minimum punishment for murder in the second degree.

Appellants contend:

(1) The verdict as to defendant Steve Eeeves is insufficient in that it does not specify the count under which he is found guilty.

(2) It is insufficient as to defendant Odie Eeeves, because it does not find him guilty of rñurder in the' second degree, and is too indefinite and uncertain to support any judgment of conviction.

Concerning" point one it is sufficient to say that since each count contained within its terms a charge of the identical crime of murder in the second degree, it was wholly unnecessary that the jury specify the count under which they found him guilty. [State v. Noland, 111 Mo. 473, l. c. 501; State v. Van Wye, 136 Mo. 227, l. c. 243; State v. De Witt, 186 Mo. 61, l. c. 67; State v. Martin, 230 Mo. l. c. 20.]

We are of the opinion that point two is well taken and that therefore the verdict as to defendant Odie Eeeves was insufficient.

One of the prerequisites of a valid verdict is that it must be definite and certain. [State v. De Witt, 186 Mo. 61, l. c. 67; State v. Rowe, 142 Mo. 439. l. c. 442; State v. Pierce, 136 Mo. 34, l. c. 40.] It must also be responsive to the charge contained in the information. [State v. Miller, 255 Mo. 223, l. c. 231.]

In the case of State v. Pierce, supra, the following was quoted with approval from 3 Graham & Waterman on New Trials, to-wit: “The verdict must be certain, positive and free from all ambiguity. It must convey on its face a definite and precise meaning and must show just what the jury intended. An obscurity which renders it doubtful will be fatal to it.” [Id. l. c. 40.] Applying the above rule it becomes at once apparent that the present verdict as to Odie Eeeves is insufficient. It finds him guilty “of being an accessory to the crime and fixes his punishment at three years in the penitentiary.” The phrase “accessory to the crime” is indefinite both as to the kind of an accessory intended as well as to the exact grade of the crime of which he was found guilty. It is only an “accessory before the fact” that is to be held guilty in the same degree as the principal. [Sec. 4898, R. S. 1909.] Neither the indictment nor the instructions contain the word “accessory.” What the jury intended, by the use of that word in the manner employed, we have no way of knowing.

It cannot be said that the verdict rendered clearly expresses the intention to find him guilty of murder in the second degree or of being an accessory before the fact to murder in the second degree, when the verdict in no manner undertakes to state the kind of an accessory intended, nor the facts necessary to constitute-him an accessory before the fact to the crime of murder in the second degree.

Other errors assigned are such as have either been determined upon the former appeal or have not sufficient merit to warrant discussion.

It follows from what has been said above that the judgment as to Steve Reeves should be affirmed, and that the judgment as to Odie Reeves should be reversed and the cause remanded. It is so ordered.

All concur.


author: FARIS, J.

text:
    THE STATE v. DICK MOTEN, Appellant.
    Division Two,
    December 23, 1918.
    1. INFORMATION: Statutory Crime: Necessary Allegations. If defendant’s offense is a statutory crime, the rule is that the indictment or information must substantially follow the wording of the statute defining it.
    2. -: Burglary in Second Degree: No Charge That Goods Were Kept and Deposited in Building. In view of the language of Section 4520, Revised Statutes 1909, unless at the time of the alleged burglary there was either a human being in the building, or goods, wares, merchandise or other valuable things were kept and deposited therein, the building was not one that could be burglarized; and an information which fails to charge that goods, etc., were “kept and deposited” in it and that the breaking and entry were with the intent to steal the goods, or that there was a human being in the building at the time, is insufficient and bad, and will not support a verdict of guilty.
    3. -: Burglary and Larceny: Charged in Same Count. It is permissible to charge both burglary and larceny in a single count of the one information; but the two charges must be kept separate, and not jumbled together and intermingled, but each must be -a complete and sufficient charge within itself.
    Appeal from Moniteau Circuit Court. — Eon. J. G. Slaie, Judge.
    Eeversed and remanded.

      L. F. Wood for appellant.
    (1) The information was bottomed on Sec. 4520, E. S. 1909. It does not state that any human being was in the building or that any goods or other valuable thing was kept or deposited therein. One of these things it is necessary to allege and prove. All the facts necessary to be proved must be clearly and distinctly charged in the .information. State v. Barbee, 136 Mo. 444; State v. Hayward, 83 Mo. 299; State v. Secrest, 130 Mo. 401; State v. Creen, 111 Mo. 588; State v. Dale, 141 Mo. 289; State v. Fairlamb, 121 Mo. 154; State v. Meyers, 99 Mo. 168; State v. Hector, 126 Mo. 340; State v. Seigel, 265 Mo. 245; State v. Wade, 267 Mo. 256. (2) Where the offense is statutory all the material facts must be stated in the language of the statute or equivalent words. [State v. Wade, supra; State v. Marcus, 171 Mo. App. 28; State v. Cabriel, 88 Mo. 637; State V. Jump, 176 Mo. App. 299; State v. Meysenburg, 166 Mo. 25. (3) “Kept and deposited” are material words used in the statute defining the crime, and the failure to charge ihem is not cured by the Statute of Jeofails. [State v. Pemberton, 30 Mo. 376; State v. Bland, 69 Mo. 317; State v. Creen, 111 Mo. 58.] (4) The charge of larceny does not aid the defect in this information. The defendant was acquitted of that charge and besides in criminal proceedings nothing can be implied or taken by intendraent. Cases above, and State v. Bland, 69 Mo. .217; State v. Seerest, 130 Mo. 401.

      Frank W. McAllister, Attorney-General, and 8. E. Skelley, Assistant Attorney-General for respondent.
    Tbe information contains - all of the elements necessary to charge burglary and larceny under the statute, is duly verified by the prosecuting attorney, and is substantially in approved forna. State v. Moss, 216 Mo. 441; State v. Watson, 141 Mo. 340; State v. Blockberger. 247 Mo. 605; State v. Burns, 263 Mo. 597.
   FARIS, J.

Defendant, jointly charged with one Joe Short, by information, with the crime of burglary and larceny, took a severance, and upon his trial was found guilty of burglary alone, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of two years. After the conventional procedure he has appealed.

The facts of the case while few and simple, are in no way necessary to an understanding of the legal points involved. But for reasons which will become apparent the information upon which the conviction was had is important. This information, omitting caption and other conventional parts in no wise attacked, reads thus:

“ S. C. Gill, Prosecuting Attorney within and for Moniteau County, Missouri, upon his oath of office and upon his information and belief, informs the court that Joe Short and Dick Moten, on or about the sixth day of August, 1917, at the county of Moniteau and State of Missouri, into a certain store, shop and building of Herman Affolter there situate and being, feloniously and burglariously, forcibly did break and enter, with intent then and there, and thereby feloniously and burglariously, to steal, take and carry away certain goods, wares, merchandise, and other valuable things and personal property in the said store, shop and building,• twenty bottles of soda water of the value of one dollar, and two dollars, all of the value of three dollars, of the goods, wares, merchandise, other valuable’ things and personal property of the said Herman Affolter in the said store, shop and building then and there being found, then and there feloniously and burglariously did steal and take and carry away, with the intent then and there to deprive the owner Herman Affolter of the use thereof and to convert the same to his own use; against the peace and dignity of the State.”

After defendant’s conviction he filed a motion in arrest, attacking the sufficiency of the above information. He contents himself with this sole point, and so shall we.

This prosecution is bottomed upon Section 4520, Revised Statutes 1909, which defines one of the ways in which, pursuant to statute, burglary in the second degree may be committed. So much of the above section as is pertinent to the question of the goodness vel non of the information herein reads thus:

“Every person who shall be convicted of breaking and entering any building, the breaking and entering of whicli shall not be declared by any statute of this State to be burglary in the first degree, ... in which there shall be at the time any . . . goo*ds, wares, merchandise, or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” [Sec. 4520, R. S. 1909.]

Obviously the offense denounced and defined above would not have been burglary at common law. It is therefore a statutory crime and the rule is that an information or an indictment for such a crime must substantially follow the words of the statute defining it. The information in this case does not charge that fhe factory, shop or building alleged to have been burglarized was one wherein goods, wares, and merchandise and other valuable thing were at the time or then and there “Icept and deposited.” Unless at the time of the alleged hnrglary there was either a human being in the building or goods, etc., therein kept and deposited, the building was not such a one as coaid be burglarized. There is neither proof, allegation, nor contention that there was at the time of tne alleged burglary any human being in this building; so unless there were at the time goods, etc., kept and deposited therein it was not the subject of burglary and it was not possible to commit a burglary by breaking and entering, it.

The learned pleader evidently intended to charge both burglary and larceny in a single count of the same information, as is permissible. But while this is permissible the two charges must be kept separate and not jumbled together and intermingled and each must be a complete and sufficient charge within itself, barring mere formal allegations. [State v. Dooley, 64 Mo. 146.] In order to charge burglary under Section 4520, for the burglarious entry of a building in which goods, etc., are at the time kept and deposited, apt allegation must be made of the fact that goods, etc., are kept and deposited therein, together with the further averment that the breaking and entry was with the intent to steal the goods, etc., in the said building then and there being. [See State v. Moss, 216 Mo. l. c. 438; Kelley’s Crim. Law & Proc., sec. 609.]

Our attention is called to the case of State v. Burns, 263 Mo. 593, wherein the defendant though informed against for both burglary and larceny had been convicted of the larceny only, so that in a manner of speaking the charge of burglary there became merely a collateral issue. The solé ' complaint made in that case touching the information was that the charge of larceny was insufficient. In disallowing this contention language is used obiter with reference to the sufficiency of the part of the information which charges the burglary which is possibly too broad. But whéther this be so or not the Burns case furnished no authority for the omission here of the averment that in the building alleged to have been burglarized goods, etc., were at the time kept and deposited. In fact this allegation was contained in the information in the Burns case. "We are of the opinion that the information herein is fatally defective.

For the error in overruling the motion in arrest which challenged the sufficiency of the information herein, the judgment must be reversed and the case remanded for a new trial, in the event that the learned prosecuting attorney should be advised to file an amended information. Let it be so ordered.

All concur.