text:
    Ex parte TONY GAUSS.
    Division Two,
    November 23, 1909.
    1. CONTEMPT: Refusing to Answer Questions: Self-Incrimination: Necessary Link. A witness is not compelled by his answer to furnish any one of the many links necessary to convict him of a crime.
    2. -: -: -: -: .How Determined. If the question be of such character that an answer to it may or may not incriminate the witness, it must rest with the witness to determine whether or not an answer to it would have that tendency; and in such case the court cannot compel him to answer.
    3. -: -: -: In Any Investigation. The Constitution does not merely mean that a witness shall not be compelled to testify in a then existing case against himself, but it means that he shall not be compelled when called as a witness in any investigation to give testimony which may tend to show that he himself has committed a crime.
    4. -: -: -: Betting on Horse Race: Link in Other Crime. Petitioner was arrested in August for making a wager on a horse race, and in September was summoned before the grand jury, and asked: “On the day that you were arrested, which was some time in August, this year, had you, just prior to your arrest, made or placed a bet with Steve Pensa, at his place of business on Washington Avenue, upon the result of a horse race?” The law against book-making and pool-selling did not make it a crime to place a bet on a horse race. The defendant refused to answer on the ground that to do so might incriminate him. Held, that, it not being entirely plain that his answer might not lead to a prosecution of himself, he was not compelled to answer, and the court could not commit him for contempt for refusing to answer. It cannot be held that the only prosecution that could grow out of an affirmative answer to the question would be one for betting on a horse race, and as the witness did not limit his reason to any particular offense, but stated his answer would incriminate him, the court should not have compelled him to answer; for, for aught the court knew, the State may have been in possession of sufficient other evidence to have convicted him of some other crime, if only it could by his answer fix on him that he was present at Pensa’s place at a given time and then and there placed a bet with Pensa upon the result of a horse race.
    Habeas Corpus.
    Petitioner, discharged.

      T. J. líoiue, Thos. J. Rowe, Jr., and Henry Rowe for petitioner.
    Petitioner now seeks Ms discharge from said imprisonment, because he contends that section 23, article 2, of the Constitution of Missouri, which provides that no person shall be compelled to testify against Mm-self in a criminal case, was violated by the judgment of the court wMch directed his imprisonment. Said imprisonment is in violation of that part of the Fifth Amendment to the Constitution of the United States which says,'“Nor shall any person be compelled, in any criminal case, to be a witness against Mmself.” In State v. Young, 119' Mo. 495, the court says that the immunity afforded is, broad enough to protect the accused against self-crimination before any tribunal or in any proceeding. Ex parte Arnot Carter, 166 Mo. 604, is decisive of this case. The witness, Carter, in that case, determined that his answer to the questions might incriminate him, and this court decided that his opinion was conclusive and could not be questioned by the trial court, and that he and he alone had to determine whether he could answer without self-crimination. In Ex parte Buskett, 106 Mo. 603, the Supreme Court declared section 3819; E. S. 1899', constitutional. See Ward v. State, 2 Mo. 120; State v. Talbot, 73 Mo. 357. The doctrine declared in the Carter Case, supra, is supported by the following decisions: State ex rel. v. Simmons Co., 109 Mo. 118; Counselman v. Hitchcock, 142 U. S. 547; Boyd v. H. S., 116 U. S. 616; Emery’s Case, 107 Mass. 172. See, also, People v. Mather, 4 Wend. 252. The court, in State v. Butler, 47 S. C. 25, holds that “the right to refuse to answer a question that would criminate is personal to the witness.” 1 Wharton on Evidence (3 Ed.), sec. 536.

      Seebert G. Jones and Forrest G. Ferris for respondents.
    (1) When a party is brought before a court on a writ of habeas corpus, and the return shows he is in custody under a commitment for contempt, the only questions to be considered are: (a) Had the court jurisdiction to commit, and (b) is the commitment in legal form charging a contempt? Church on Habeas Corpus, sec. 315; p. 444; Ex parte McKee, 18 Mo. 600. In this case the commitment was issued by a court having unquestioned authority to commit for contempt. The only question remaining is as to whether the facts recited in the commitment constitute and charge contempt. This, the respondents contend, it plainly and specifically does. (2) Where a witness pertinaciously refuses to answer a lawful question, to compel obedience the court may order his imprisonment until he does answer, and need not limit his imprisonment to a given number of days; and this whether such contumacious refusal to answer be before tbe court or the grand jury. Ex parte Renshaw, 6 Mo. App. 474; 7 Am. and Eng. Ency. Law, 47. (3) It is the province of the court to judge whether any direct answer to the question that may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so ■ as to furnish matter for that conviction. In such case the witness must himself judge what his answer will be, and if he say on his oath he cannot answer without accusing himself, he cannot be compelled to answer. Burr’s Trial, 245; Ward v. State, 2 Mo. 120'; Ex parte Buskett, 106 Mo. 602, 607; Rapalje’s Law of Witnesses, see. 266, p. 438; 30 Am. and Eng. Ency. Law (2 Ed.), 1166; Edwards, Grand Jury, p. 133. At the time these questions were asked the witness before the' grand-jury, that body, as recited in the commitment, was engaged in an investigation of the violations of the book-making and pool-selling law, Laws of 1907, p. 232. This law is leveled against the book-maker and the pool-seller only, and is limited to his acts in bookmaking and pool-selling. It prohibits book-making, pool-selling, registration of bets, and the receiving as custodian money wagered upon certain contests. But it is not under this law, nor under any other law known to us, made a crime for a person to make or place a bet on a horse race, or to make another person the custodian of a bet upon the result of a horse race. It, therefore, cannot be said that any direct answer to the questions asked would furnish evidence against the witness. An answer, either yes or no, by the witness could not disclose a fact which would form a necessary and essential link in the chain of testimony which would be sufficient to convict him of a crime. As no answer could implicate the witness the court was correct in ordering him to answer.
   GANTT, P. J.

The petitioner by this proceeding seeks to be discharged from imprisonment and the custody of the jailer of the city of St. Lonis. It appears from the record that the petitioner was committed for contempt by the circuit court of the city of St. Louis for refusing to answer certain questions propounded to him by the grand jury of said city on the 27th day of September, 1909. It appears that in August, 1909, petitioner was arrested for making a. wager on a horse, race, and on September 30, 1909, he was summoned before the grand jury of the city of St. Louis, and was asked the following questions:

“I want to ask you again, Mr: Gauss: On the day that you were, arrested, which was some time in August, this year, had you, just prior to your arrest, made or placed a bet with Steve Pensa, at his place of business on Washington avenue, upon the result of a horse race?
“Q. Did you ever give Steve Pensa, or any other person in his place of business, any money to be placed upon a horse race to be run at any place within the State of Missouri, or without the State?
“Q. Have you, at any time within the last three years, made Steve Pensa the custodian of any bet upon the result of a horse race?”

The petitioner refused to answer these questions because by so doing he might incriminate himself. Whereupon his refusal was reported to the Judge of Division Number Ten of the Circuit Court of the city of St. Louis, who ordered him to answer said questions, and upon his refusal to do so committed him to the jail of the city of St. Louis until such time as he would answer said questions. The petitioner insists that he is entitled to be discharged from said imprisonment because the- effect of the said judgment and order was to violate section 23 of article 2 of the Constitution of this State, which provides: ‘ ‘ That no person shall be compelled to testify against himself in a criminal cause,” and because said commitment is in violation of that part of the Fifth Amendment of the Constitution of the United States, which says: “Nor shall (any person) be compelled in any criminal case to be a witness against himself.”

In State v. Young, 119 Mo. 495 l. c. 520, it was said by this court: “The Constitution means more than the protection of the accused on his final trial when his rights are scrupulously guarded by the courts. It as clearly protects him from being forced to testify against himself in any and all preliminary investigations, whether before the coroner, grand jury or the justice on his preliminary examination. The immunity afforded him by the Constitution is broad enough to protect him against self-crimination, ‘before any tribunal-in any preceding.’ Counselman v. Hitchcock, 142 U. S. 547; Cullen v. Commonwealth, 24 Gratt. 624; State ex rel. v. Hardware Co., 109 Mo. 118.”

Learned counsel for the State insist, however, that it is “the province of the court to judge whether any direct answer to. the question that may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms the necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction, but if. the question propounded does not disclose upon its face that it will have such tendency, and the witness fails to clearly show to the court how it will have such effect, he may be punished for contempt after he refuses to' answer after being directed to do so by the court.” And their contention is that the petitioner was not entitled to invoke the protection of the Constitution against answering these questions for the reason, as they say, that it is not, under this Act of 1907 against book-making and pool-selling, nor any other law, made a crime for a person to make or place a bet on a horse race, or to make any other person the custodian of a bet upon the result of a horse race.

This court in Ex Parte Amot Carter, 166 Mo. l. c. 614, said: “It is a reasonable construction of the constitutional provision, that the witness is protected from being compelled to disclose the circumstances of his offense, or the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him.”

Chief Justice Marshall when engaged in the trial of Aaron Burr (1 Burr’s Trial, 244), said: “If the question be of such a description, that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say, upon his oath, that his answer would criminate himself, the court can demand no other testimony of the fact. . . . According to their statement (the counsel for the United States), a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of a crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony, which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule, that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing; but, all other facts without it would be insufficient. While that remains concealed within his own bosom, be is safe; but draw it from thence, and be is exposed to a prosecution. Tbe rule wbicb declares tbat no man is compellable to accuse bimself, would most obviously be infringed, by compelling a witness to disclose a fact of tbis description. Wbat.testimony may be possessed, or is attainable, against any individual, tbe court can never know. It would seem, tben, tbat tbe court ought never to compel a witness to give an answer, wbicb discloses a fact tbat would form a necessary and essential part of a crime, wbicb is punishable by tbe laws.”

Learned counsel for the State seem to conclude tbat tbe only possible prosecution tbat could grow out of an affirmative answer to tbe questions propounded to tbe petitioner in tbis case by tbe grand jury, would be one for betting on a. horse race, but the witness did not limit bis reason to any particular offense but stated tbat to answer tbe question would incriminate him. For aught tbat tbe court knew, tbe State may have been in possession of sufficient other evidence to have convicted tbe petitioner of some other crime, if only it could fix upon him tbat be was present at Pensa’s place at a given time and tben and there placed a bet with Pensa upon tbe result of a horse race, or gave Pensa money at tbat time to be placed upon a horse race. Tbe meaning of tbis constitutional provision has time' and again been held not to be merely a provision tbat a person shall not be compelled to testify in a tben existing case against bimself, but tbat be shall not be compelled when acting as a witness in any investigation to give testimony wbicb may tend to show tbat be bimself has committed a crime. And this court has approved a doctrine announced by Chief Justice Marshall, tbat if tbe question be of such description tbat an answer to it may or may not incriminate tbe witness it must rest with bimself, who alone can tell wbat it would be to answer tbe question or not.

And if, in such, case, he say upon his oath, that his answer would incriminate himself, the court can demand no other testimony of the fact. This rule, we think, is entirely consistent with the doctrine generally held, that where the court can say as a matter of law, that it is impossible that a witness would incriminate himself by answering a question one way or the other, then the court can require an answer. But we think the question propounded in this case, is not such a question, but one which the witness had the right to decline to answer, if, in his opinion, it would incriminate him. To hold that he must have explained all of the other testimony in the case, which would be sufficient to convict him, by an answer to this question, would render the rule entirely worthless. The language of the court in People v. Mather, 4 Wend. l. c. 252, is, we think, very persuasive. Said the court: “Where the disclosures he may make can be used against him to procure his conviction for a criminal offense, or to charge him with penalties and forfeitures, he may stop answering before he arrives at the question, the answer of which may show directly his moral turpitude. The witness who knows what the court does not know, and what he cannot communicate without being a self-accuser, is to judge of the effect of his answer, and if it proves a link in the chain of testimony, which is sufficient to convict him, when the others are made known, of a crime, he is protected by law from answering the question. If there be a series of .questions, the answer to all of which would establish his criminality, the party cannot pick out a particular one and say, if that be put, the answer will not criminate him. ‘If it is one step having a tendency to criminate him, he is not compelled to answer.’ ”

In State ex rel. v. Hardware Co., 109 Mo. 118, Judge Barclay, speaking for this court, said: “It is a reasonable construction we think, of the constitutional provision, that the witness is protected ‘from being compelled to disclose tbe circumstances of his. offense, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him.’ ”

In our opinion, the petitioner having testified that he could not answer the questions without criminating himself, and it not being entirely plain that his answers might not lead to a prosecution of himself, we think the circuit court erred in committing him for contempt in refusing to answer.

And he is, therefore, entitled to be discharged from his imprisonment and it is so ordered.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    JOHN HALTER et al., Appellants, v. JOHN L. LEONARD et al.
    Division two,
    November 23, 1909.
    1. PUBLIC ROAD: Petition: Names of Ail Landowners. Where the petition is accompanied by the names of all resident persons owning land through which the proposed road is to be run, the county court does not fail to acquire jurisdiction simply because the petition itself does not contain these names. The statute does not require that.
    2. -: -: -: Question for County Court. Jurisdiction is conferred by the statutes upon the county court to pass upon the sufficiency of a petition for the establishment of a public road, and to find, as a matter of fact, that it was accompanied by the names of all persons through whose land the proposed road is to run.
    3. -: Survey by Deputy Surveyor. The proceedings of the county court establishing a public road will not be held void in an injunction because the report of the county surveyor was made by his deputy in the name of his principal instead of by the principal himself. All official acts done by a deputy should be done in the name of the principal.

      4. -: Appeal: New Assignment: Attorney’s Fee. An assignment that an allowance of attorney’s fees to the petitioners for a road, established at the expense of the county, was unauthorized, made for the first time in'the briefs, and not assigned as a ground in the motion for a new trial, is not available in the appellate court. Besides, an allowance of such a. fee, after final judgment had been rendered, after a full hearing, and after all damages had accrued and been adjudged, is not objectionable.
    Appeal from Buchanan Circuit Court. — Ho». G. A. Mosman, Judge.
    Affirmed.

      Mytton & ParTcimbn and G. G. Grow for appellants.
    (1) This is a proceeding to condemn the land of plaintiff and intérvenors for an alleged public road, and “it has been'uniformly held by this court in proceedings to condemn private property for public use, that unless it affirmatively appeared upon the face of the proceeding that every essential prerequisite of the statute conferring the authority has been complied with, such proceedings, will be void.” In re Bledsoe Hill, 200 Mo. 642. (2) There is no pretense in this case that the statutory provisions (sec. 9414), requiring the petition to be accompanied by the names of all the persons owning land to be taken for the public road, was complied with, and in fact the intervening petition showing that there were thirteen landowners whose land was being taken, four of whom were minors, who were not named or referred to in any of the proceedings in the county court from the filing of the petition to final judgment, the rule stated in point one being applied, all the proceedings of the county court are absolutely and wholly void. R. S. 1899, sec. 9414. The fact is that the petition filed with the county court is void of all allegation with reference to this specific requirement of the statute except the general allegation that all persons owning land are named therein, but there is no pretense that any of them are named as such land-owners or the amount of damages claimed by the land-owners, and a compliance with this statute should be strictly enforced in this case in accordance with the rule announced by the case cited in point one. The Stock heirs were not parties to the suit in any sense of the word, and the statute requiring all land-owners to be parties to the proceeding under the statute, must necessarily be void.

      Luke E. Moss for respondents.
    Plaintiffs’ abstract of record, among other findings made by the county court on the 28th day of April, 1905, says: ‘ ‘ That said petition is accompanied by the names of all the resident persons owning land through which said proposed road runs, together with the amounts of damages claimed by them, so far as can be ascertained,” etc.; “the court further finds that said proposed road is a great public necessity, is practicable, ’ ’ etc. This solemn finding of the county court, to which tribunal this matter lias been committed by law, and which can and should be tried anew on appeal in the circuit court, where the road case is now pending, shows plainly that plaintiff had an ample and an adequate legal remedy, and that injunction was unnecessary, and that the circuit court did right in its finding. Railroad v. Maddox, 92 Mo. 471; Shelbina Hotel Assn. v. Parker, 58 Mo. 327; Kelly v. Hurt, 74 Mo. 561; Bobb v. Graham, 89 Mo. 200.
   GANTT, P. J.

On the 6th of February, 1905, John A. Lynch et al. filed with the clerk of the county court of Buchanan county, a petition to establish and open a county road in said county. The petitioners allege that they were citizens of said county and at least twelve of them were duly qualified and competent adult petitioners, resident of and owners in their own proper rights of lands in the municipal townships through which said proposed road was to be located, three of whom resided in the immediate neighborhood of said proposed road. They stated that the said road was to be thirty feet in width and would be located in the townships of Agency and Washington in said county and was of great public utility and was not a change of a previous location, and that the begining, courses and termination thereof, with not less than two points named on the direction of said public road, are as follows: “Begining at'the quarter section comer between sections 7 and 8 in township 56 of range 34 in center of ppblic road and run north with section line 106 2-3 rods to a point and thence west 80 rods and thence north 53 1-3 rods to the north line of section 7, and thence north to a point due east of the center of section 6, and thence west to the center of section 6, and thence north to the north line of section 6, in same township and range, and thence west 4 chains and 64 links to quarter section corner south line of section 31 in township 57 of range 34, and thence due north with section line to Garretsburg road in section 31 aforesaid.” The petition further avers that this road whenever practicable would run along government surveys, and that this petition was accompanied by the names of all the residents and other persons owning lands through which said proposed road would run, and also names of all who were willing to give the right of way for said public road. And they prayed for the establishment of said proposed public road and for all proper relief. At the time of the filing of said petition, said John A. Lynch et al., whose names were subscribed thereto, filed with the clerk of the county court a notice of said intended application for the location of said road, whereby notice was given that on February 6th, 1905', at the regular February term, they would present said petition for said public road to tbe county court of said county. This petition was filed and proof of legal notice was made on the 6th of February, 1905, and the court set the cause down for hearing on the 27th of February, 1905. On the 20th of February, a remonstrance was filed by the plaintiffs and others with the county clerk of the county of Buchanan against said road. The hearing was had on said petition and remonstrance on the' 28th of April, 1905, on which said last named date the county court found that the said proposed road was of great public necessity, was practicable, and that the facts justified the location of the road at the expense of the county, and ordered the road commissioner to view, survey and mark out said proposed road and report his proceedings in the premises at the next term of the said court to be begun in May, 1905. In obedience to the order of the court, the county surveyor on the first of May, 1905-, made his report, in which he stated the names of the landowners who gave the right of way, and of those who claimed damages, and named as among those who declined to state what damages they claimed, John Halter, Mrs. J. G-. Adams and the heirs, of the Stock estate. He also filed his estimate of the cost of building the bridges and culverts and grading said road, and filed with his report a plat which showed the owners of the land and the numbers thereof. Thereupon the court appointed J. L. Leonard, W. J. Wilson and David Turner, commissioners to assess damages on said road and to report their findings to the August term of said court. The report of these commissioners was afterwards filed, in which it appeared that John Halter, the plaintiff herein, was allowed damagns to the amount of thirty dollars, by the running of the said road on the south side of the southwest quarter of the northeast quarter of section 6, township 56, range 34. The record then shows that the report of the commissioners was approved by the court, and exceptions were filed by the plaintiff Halter et al., a jury waived, and the plaintiff’s exceptions overruled, and thereupon the plaintiff on behalf of himself and others was granted an appeal to the 'circuit court of Buchanan county. Pending the said appeal in the circuit court, the plaintiffs commenced this suit-in the circuit court of Buchanan county to obtain an injunction against the judges of the county court and the county surveyor and Peter Olson, the road commissioner, to enjoin and restrain them from taking, or attempting to take, any part of the plaintiffs ’ lands for the purposes of said proposed roads as described in said petition in the county court. On January 20, 1906, the defendants filed their answers, in which they denied each and every allegation complained of in the plaintiffs’ petition, and prayed that the temporary injunction issued be dissolved. Thereupon the cause was heard in the circuit court and on March 10, 1906, the court found for the defendants, and ordered that the .restraining order theretofore made in the cause should remain in force pending the appeal to this court, plaintiffs having taken the proper steps for prosecuting this appeal to this court.

I. The plaintiffs rely upon practically two grounds only for the reversal of the judgment of the circuit court dissolving the temporary injunction and dismissing the bill.

The first insistence is that the county court acquired no jurisdiction of the proceedings to establish the public road in question for the reason, as alleged, that the petition did not contain the names of all the persons owning land which would be taken for the said public road. By reference to section 9414, Revised Statutes 1899, it will be noted that there is a proviso therein in these words: “Said petition shall be accompanied by the names of all resident persons owning land through which said proposed road or change of road shall run, with the amount of damages claimed by them, so far as can be ascertained, and also the names of those who are willing to give the right of way for said proposed road or change of road.” In the petition filed in this case for the opening of this road, it was alleged, “This- petition is accompanied by the names of all residents and other persons owning land through which said proposed public road shall run, with the amounts of damages claimed by each of them so far as can be ascertained, and also by the names of all those who are willing to give the right of way for said proposed public road.” And the county court upon the final hearing of this petition and application found as a matter of fact that said petition was accompanied by the names of all the resident persons owning land through which said proposed! road would run. There is no warrant in the statute for the contention that the petition itself should contain these names. Full and complete jurisdiction was conferred upon the county court to pass upon the sufficiency of this petition, and to find as a matter of fact that it was accompanied by the list of land-owners as provided by the statutes. As said in Baubie v. Ossman, 142 Mo. l. c. 505, “The county court having the exclusive jurisdiction for the laying out and opening public roads and having acquired jurisdiction in this particular case by the notice and petition, its findings and! judgment are not open to collateral attack, and its judgment is entitled to every presumption in its favor. [Lingo v. Burford, 112 Mo. 149; Snoddy v. Pettis County, 45 Mo. 361; Rose v. Kansas City, 128 Mo. 135.]”

II. The contention that the proceeding was void and open to this collateral attack because the report of the county surveyor was made by his deputy in the name, of his principal, and not by the principal himself, is equally untenable.

By section 10194, Revised Statutes 1899, it is provided that “deputies may be appointed by any surveyor, who, before they proceed to discharge their duties, shall take an oath well, truly and faithfully to discharge the duties of deputy surveyors.” It is a well settled rule of law that all official acts done by a deputy should be done in the name of the principal. “A deputy is one who, by appointment, exercises an office in another’s right, having.no interest therein, but doing all things in his principal’s name, and for whose misconduct the principal is answerable.” [9 Amer. and Eng. Ency. Law (2 Ed.), 369; Carter v. Hornback, 139 Mo. 238.]

In regard to the assignment, found in the brief for the first time, that the allowance for attorney’s fees to the respondents was unauthorized, it is sufficient to say that no such ground was assigned in the motion for new trial or in the regular assignments of error. Nor do we see any objection, any way, to the allowance of this fee, because it was only allowed after a final judgment had been rendered, after a full hearing of the cause, and after all the damages, including the attorney’s fees, had accrued up to that time.

It follows* that the judgment of the circuit court dissolving the injunction is sustained and affirmed, and that the final order continuing said injunction in force until the disposition of this appeal, should be, and is set aside, and the judgment in all other respects affirmed.

Burgess and Fox, JJ., concur.


author: FOX, J.

text:
    JOSEPH F. LINDSAY, Appellant, v. SAMUEL A. BATES.
    Division Two,
    November 23, 1909.
    1. MALICIOUS PROSECUTION: Plaintiff’s Guilt: Probable Cause. In a suit for civil damages for malicious prosecution, the issue is not whether plaintiff was guilty of the offense charged in the information which was based on defendant’s affidavit, but the issue is, Did defendant have probable cause for commencing said prosecution?
    2. -: Probable Cause: Information Founded on Facts. An instruction, in a suit for malicious prosecution, advising the jury, that- “information that would justify the making of a criminal complaint against another, for the purpose of having him arrested, must be of such character and obtained from „ such sources, that men, generally, of ordinary care, prudence and discretion would feel authorized to act upon it under similar circumstances,” is not erroneous. The law does not require that the prosecuting witness must know of his own knowledge all the facts upon which such prosecution must rest.
    3. -: -; Evidence: Question for Jury. Defendant filed an affidavit charging plaintiff with arson, and the prosecuting attorney based an information thereon, and the case was dismissed before trial, and plaintiff brought this suit for malicious prosecution. Defendant testified that he was the owner of the house that was burned; that he himself had been charged with burning the house along with one Berryman, but the charge was dismissed; that he then began to investigate, and received information that led him to believe it was burned by an incendiary; that he found plaintiff had a printing outfit in said building, which was insured for $300, and that plaintiff had collected the insurance, and a witness told him plaintiff had purchased the outfit from a woman for fifty dollars. He also produced evidence to the effect that plaintiff’s reputation for honesty and integrity was bad; that plaintiff was seen on the evening of the fire talking to Berryman, whose reputation for honesty, integrity and property-burning was very bad; that soon afterwards Berryman was seen to give Morris some money and heard, to say, “Give it to Daniels, and he will know what it is for,” and these facts were made known to defendant; that he was told by Ballard that Mell had seen plaintiff go towards defendant’s building with shavings and an oil can, about ten minutes before the fire broke out, and defendant testified that Mell told him the same story. Held, that, if these facts were true, the court cannot say, as a matter of law, that an ordinarily reasonable and cautious man would not have said that plaintiff burned the house, and whether or not they were true was a matter for the jury to determine, and their verdict for defendant is justified by the evidence.
    4. -: -: -: Incompetent Hearsay: Irrelevant. Berryman testified by deposition that defendant, in the suit for malicious prosecution, offered to satisfy two debts amounting to fifty dollars and to pay him fifty dollars cash, if lightning would strike the building which defendant by affidavit charged plaintiff burned; that he, witness, told one Daniels that defendant would pay money to have the building burned, and that Daniels, a few days after the fire, being drunk, told witness he had burned it. Held, first, that the alleged statement of Daniels was wholly incompetent as hearsay; and, second, the statement of Berryman as to what occurred between him and defendant, was utterly irrelevant to any issue on trial, and was properly excluded.
    5. IMPEACHMENT: Of Excluded Witness. The impeachment of a witness, all of whose testimony was properly excluded, was not hurtful to appellant.
    6. -: Reputation Prior to Three Years, Where a witness for three years prior to testifying had no established residence, and resided in no place long enough to establish a reputation, it is proper to show that his reputation was bad in the community where he had resided all his life prior to such time.
    Appeal from Wayne Circuit Court. — Hon. Jos. J. Williams, Judge.
    Affirmed.

      'Ernest A. Green and James F. Green for appellant.
    (1) There was no evidence showing any justification for the prosecution of plaintiff. Malice and want of probable cause were both proved. The judgment, therefore, should not be permitted to stand. Stubbs v. Mulholland, 168 Mo. 47; Carp v. Insurance Co., 203 Mo. 295; Bucher v. Hoffman, 99 Mo. App. 250; Me-Garry v. Railroad, 36 Mo. App. 347; Eagleton v. Kubick, 66 Mo. App. 231. (2) Any evidence tending to prove that Bates knew plaintiff was not guilty of the charge made against him was admissible on the issue of want of probable cause, and for this reason error was committed in excluding the deposition of Berryman. Elliott on Ev., secs. 2476-2478. And the whole deposition should not have been excluded upon a general objection, if the testimony was admissible for any purpose. Stark v. Knapp, 160 Mo. 553; Chaffee v. Bailroad, 64 Mo. 193; Wibracht v. Adams, 89 Mo. App. 370. (3) The court erred in admitting impeaching testimony as to the character of Berryman. Such testimony should be confined to the time the witness testified! and not to a prior time. Wood v. Matthews, 73 Mo. 482; State v. Parker, 96 Mo. 390; State v. Sum-mar, 143 Mo. 231; Greenleaf on Ev., sec. 459 ; State v. Shouse, 188 Mo. 478; De Arman v. Taggart, 65 Mo. App. 86. (4) Defendant’s instruction 2 is erroneous in declaring that “information” received by defendant was sufficient to justify his action. It is knowledge of the existence of facts which will authorize the institution of a criminal proceeding and not mere rumor. Van Sickle v. Brown, 68 Mo. 627; Stubbs v. Mulholland, 168 Mo. 47; Sharp v. Johnston, 76 Mo. 660 ; Bucher v. Hoffman, 99 Mo. App. 250. (5) The instruction is also In conflict with instruction 2 for plaintiff.

      J. B'. Daniel for respondent.
    (1) This case having been tried by a jury this court will not set aside their verdict on the ground that it is against the weight of the ’ evidence, there being evidence to support the verdict. G-arneau v. Hertel, 15 Mo. 191; Zimmerman v. Owens, 24 Mo. 97; Thompson v. Bussell, 30 Mo. 498; Holden v. Vaughan, 64 Mo. 589; Conrad v. Bailroad, 116 Mo. App. 517; Levels v. Bailroad, 196 Mo. 606; Little v. Pump Co., 122 Mo. App. 620. (2) Where plaintiff submits evidence to sustain his burden of proof, the defendant, even if he offers nothing to contradict it, is entitled to have the jury determine its credibility, and an appellate court will not review their verdict. Schroeder v. Railroad, 108 Mo. 322. (3) Even if it was error to reject any part of the deposition of Berryman, it was not prejudicial, he having been completely impeached. State v. Francis, 199 Mo. 671. (4) The testimony impeaching Berryman was not incompetent by reason of the fact that the witnesses did not testify as to his reputation where he lived at the time his testimony was taken, for the rule is that such testimony should be as to the reputation of the witness where he is best known, and under the testimony it clearly appears that Berryman was best known in Wayne county, Missouri, where he had resided practically all of his life, and that he had resided in Nacogdoches county, Texas, “four months.” 1 G-reenleaf on Evidence, sec. 461. (5) The court correctly declared the law in defendant’s instruction 2 and that instruction is not inconsistent with the instruction 2 given for plaintiff. The gist of the action is: 1. Did the defendant, now respondent, believe the appellant guilty? 2. Did he have reasonable grounds for so believing? That reasonable and probable cause which will relieve a prosecutor from liability is a belief by him in the guilt of the accused, based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man. Yansickle v. Brown, 68 Mo. 635; Hill v. Palm, 38 Mo. 23; Brennan v. Tracy, 2 Mo. App. 540; Kelley v. Osborn, 86 Mo. App. 239; Butcher v. Hoffman, 99 Mo. App. 239. (6) The dismissal of the prosecution against appellant, being made against the objections of respondent, is no evidence of want of probable cause. Roeger v. Langenberg, 97 Mo. 390. And there was ample evidence of probable cause in this case.
   FOX, J.

This action was commenced in the circuit court of Wayne county to recover damages for malicious prosecution.

The amended petition on which the case was tried alleged that the defendant on the 13th • day of October, 1904, appeared before the clerk of the circuit court of said county and maliciously and without probable cause charged the plaintiff with the commission of the crime of arson, filing an affidavit charging him with the felonious burning of a certain frame building situated on lot seven in block twelve in the city of Piedmont.

It is further alleged that the information was thereupon filed by the prosecuting attorney, based on said affidavit, and a warrant issued thereon by the clerk, and plaintiff, arrested thereunder, gave his bond to appear before the circuit court of said county for trial. It is then alleged that at the February term, 1905, the prosecuting attorney dismissed said prosecution against plaintiff, being advised that the charge contained in the information was without foundation. It was alleged further that plaintiff had incurred expenses to the amount of two hundred dollars in making his defense to the said charge, and he prayed judgment for five thousand' dollars, actual damages, and five thousand dollars, punitive damages.

At the return term, the defendant filed his answer, which was a general denial and also an allegation that plaintiff’s general reputation for honesty and morality in the community in which he lived was bad. There was a trial by a jury and a verdict and judgment for the defendant from which the plaintiff prosecutes an appeal to this court.

It appears from the evidence that the plaintiff lived at Piedmont in 1903, and had lived there for about twenty years; that he was an attorney at law and president of a bank in the said town. The building which was destroyed in said town was a frame building belonging to the defendant Bates, and was occupied at the time it was burned, October 19, 1901, by one John Berryman. Sometime after the house was burned, tbe defendant, Dr. Bates, John Berryman and Ed Daniels were indicted for burning it, but this indictment was subsequently quashed and these parties discharged. Afterwards on tbe 13th of October, 1904, tbe defendant made tbe affidavit referred to in the plaintiff’s petition, charging tbe plaintiff with having burned tbe said bouse. Tbe testimony was substantially as follows:

McGhee, tbe deputy clerk, identified tbe affidavit filed by tbe defendant on which tbe warrant was issued, and also stated that tbe defendant said that be bad a good case against tbe plaintiff, and if be did not convict him he would leave the State.

E. H. Davis testified that be was prosecuting attorney at the time tbe information for arson was filed and that be filed tbe same at tbe request of tbe defendant. He stated that be advised tbe defendant to let tbe matter alone, but defendant said that tbe Statute of Limitation was about to run and be must act immediately. Witness told Bates be did not want to file tbe information because be did not think be could make a case. The warrant issued for plaintiff’s arrest, and tbe bond given by him for bail, together with tbe judgment discharging him from that charge, were all offered in evidence.

Almon Ing, prosecuting attorney at tbe time tbe case was dismissed, testified that be went over tbe case with tbe defendant and Mr. Eaney, who bad been employed to assist in tbe prosecution, and told Dr. Bates there was not enough testimony to secure a conviction and for that reason be- intended to dismiss it and did dismiss it, and that Mr. Eaney agreed with him. Witness stated that defendant made tbe remark that if tbe case was dismissed, plaintiff would enter suit for malicious prosecution against defendant; that thereupon tbe prosecuting attorney went to tbe plaintiff and requested him not to do it; that plaintiff seemed to get mad and would not make any such agreement, but said if defendant would sign a statement that he had lied, he would do it.

Mr. Durham, attorney for plaintiff, stated that it was probable that they would show probable cause. This witness testified that it was his understanding when they quit talking that plaintiff did agree not to bring suit.

Caleb Ballard testified that defendant tried to keep his son John Ballard from being present at the trial of the ease against plaintiff; this testimony was denied by the defendant in his evidence, and the testimony of John Ballard shows that he was in Piedmont on the day the prosecution against plaintiff was dismissed.

The deposition of John Berryman was read in evidence. It was taken in Texas, and he was not cross-examined. The witness testified that he lived in Nacogdoches county, Texas, and had lived there four months. He testified that the defendant told him that if lightning struck those buildings he would square the account of witness for thirty dollars, another account of twenty dollars that witness stood good for, and give him fifty dollars besides. He testified further that he told Ed Daniels that Doctor Bates, the defendant, would pay a man to bum the building and that afterwards Daniels told witness that he had burned the building. Daniels was dead at the time of this trial. There is no other evidence that Daniels burned the building and none whatever that defendant ever paid anything to any one in connection with the burning of the building, or that he was ever' requested to pay anything to any one for doing so. This evidence was afterwards excluded by the court and the jury were directed not to consider it..

Berryman also testified that he owed respondent about thirty dollars and prior to the burning of the house the defendant pressed him for the payment of it. The witness was charged jointly with the plaintiff with the arson of the building.

Joseph Lindsay, the plaintiff, testified that he had nothing whatever to do with the burning of the house; that he was in bed asleep when the alarm was sounded; that he never had any conversation with Daniels or Berryman in reference to burning the house. He testified to his arrest in consequence of the complaint against him by defendant, to his payment of attorneys to defend the case, to his objection to having the case dismissed and that he made no agreement with the defendant or any one else in regard to the dismissal of the case and said he would not consent to a dismissal except upon the defendant making a written retraction of what he had sworn to in the affidavit, and that he had nothing whatever to do with the prosetion of the defendant on charge of burning the house. On cross-examination he stated that he let a man by the name of Wilson, who was in the building, have about $200 to buy a printing outfit; that the insurance on this printing outfit was in the name of himself and Wilson. That he made the proof of the claim, collected the insurance and got his part of it. He stated that his purpose for bringing this action was for vindication against these charges. He testified that he tried to get Berryman to attend the court in person, but he refused to come for fear that the defendant would kill him or have him killed.

O. C. Ivy testified to a conversation with the defendant in which the latter told him he had filed a complaint against plaintiff and “would send the d — n rascal over the road,” and that plaintiff had indicted him or tried to. He testified that plaintiff’s reputation was good as far as he knew. On cross-examination he stated that he heard it discussed and some said it was good and some said it was bad, “they talked both ways.”

J. H. Clore testified substantially tbe same as Ivy. Other witnesses testified that plaintiff’s reputation as a business man for honesty and integrity was good.

On the part of the defendant, the defendant testified, denying the statements attributed to him by the witness Caleb Ballard and stated that at the time he filed' the affidavit he believed that the plaintiff and Berryman were guilty of arson and that plaintiff had caused defendant to be indicted in order to divert suspicion from himself; that the' reputation of plaintiff was very bad, as also was that of Berryman. Defendant was in Cape Girardeau the night the house burned. He moved back to Piedmont the last part of Janury, 1902, and began an investigation as to the fire and he found that it was of incendiary origin by a statement made by Berryman. John Ballard told defendant that Berryman’s reputation was bad and he could be hired to do anything for a little money. John Mell told defendant that “he saw a man do that; that he was coming across the hub yard and going between Lee’s warehouse and that he got something that looked like an oil can back there, and that was about ten minutes before the fire alarm.” That Mell said that it was no one but Joseph Lindsay. The defendant testified that Harry Bates told defendant that he had seen the plaintiff Lindsay and John Berry-man together on the evening of the 19th of October, 1901, about three o’clock; that they walked up' the street and down the alley towards a calaboose, and plaintiff kept John Berryman there for an hour, and that soon thereafter he (Harry Bates) saw John Berry-man call one Ezra Morris and hand him some money with directions to “give it to Ed Daniels and he would know what it was for.” He also testified that Wilson told him that he had owned the printing outfit until just before the fire, but that plaintiff had offered him such an inducement that he turned it over to plaintiff, who told him he could use it as long as he wanted to free of charge. He also testified that one Alberts told plaintiff that he had sold the printing outfit to Wilson for a woman and received fifty dollars in full payment* for the same; that on investigation he found that the reputation of- John Berryman was very bad; that he had a reputation for burning houses, blacksmith shops; that defendant had been arrested himself charged with burning the same building which plaintiff had been charged with burning. In preparing for his defense most of the evidence given by him was ascertained; that the.case against him was dismissed without trial. Several people told him that John Berryman had frequently been seen in consultation with the plaintiff; that prior to and pending this investigation there had been a great number of incendiary fires in Piedmont; that defendant had given to the prosecuting attorney lists of the witnesses and had asked that the matter be investigated by the grand jury, but the witnesses were never called before that body; that the prosecuting attorney, Ing, told defendant that he would dismiss the case against John Berryman so as to get him back to testify against plaintiff, but that was not done. That Ing stated to him that he intended to dismiss the case against plaintiff, but said “I think you have probable cause, but I will not be able to convict;” that Ing further said Mr. Lindsay will not bring a, suit if this case is dismissed. Defendant collected insurance on the place that was burned.

Harry Bates testified that he had told defendant that he had seen plaintiff and John Berryman talking together on the evening of the fire, and also told defendant that he had seen John Berryman give Ezra Morris some money the evening the fire occurred and heard him tell Morris to give Ed Daniels the money who would know what to do with it. That plaintiff went to Murphysboro two or three months before the trial of this case and tried to get witness to make certain statements in writing in connection with the case, which witness refused to do because they were not correct.

W. P. Toney testified that he had lived in Piedmont forty-eight years and had known plaintiff twenty-years and that plaintiff’s reputation for-honesty and integrity was bad, but admitted that he was not on good terms with him and did not like him.

Dr. Gr. W. Toney testified plaintiff’s reputation for morality was bad, but admitted that he had a deposit in the Exchange- Bank, and was the family physician of the family.

A number of witnesses testified that they knew John Berryman’s reputation in the neighborhood of ■Piedmont up to the time he lived there in 1901 or 1902 and that his reputation for honesty and integrity was bad.

In rebuttal the plaintiff offered testimony as follows:

William Carter testified that defendant did not present him, as foreman of the grand jury, a list of the witnesses to be called on the charge against plaintiff, as far as he remembered, but that the names were sent to Capt. Leaper, a member of the grand jury, in reference to the burning of the storehouse of Mr. Lindsay. He testified that the reputation of plaintiff from a business standpoint was good, but it had been talked that he burned his store to get "the insurance.

R. H. Davis, recalled, testified that while he was prosecuting attorney he told defendant that the testimony of John Berryman would implicate defendant; that Berryman was not put in jail after he had made a statement and sworn to it. He testified that the indictment against defendant was quashed because there was not sufficient testimony to attempt to prosecute the defendant of this charge.

John Mell testified that he did not tell defendant that he saw plaintiff in and about that building with a coal oil can for the purpose offsetting fire to it, but he did say to defendant and W. S. Anthony that he had seen a man come out of the alley back of Lee’s warehouse and pick up a coal oil can.

Alman Ing, recalled, testified that when he told defendant he intended to dismiss the indictment against plaintiff, defendant insisted on having it continued to get John Berryman and S. E. Wilson; that he told defendant Berryman’s testimony would not help the State and defendant insisted Berryman would tell a different story next time; that he had been served with notice to take the deposition of Wilson, and did not know whether he notified defendant of that fact or not.

• On behalf of the defendant, John Ballard testified that he had been subpoenaed in the case for the 15th and there was a new subpoena for the 9th, and his property was attached and he had to go to Arkansas and he borrowed $13 from defendant and was back in Piedmont on the 15th of February, 1905. He testified he told defendant that John Mell had told him that he was watching the hub factory at that time and about ten minutes before the fire broke out he saw Mr. Lindsay go through there between Lee & Company’s store and John Berryman’s store.

Huff testified that Joe Mell said, “I am going to get all I can out of this case.”

W. S. Anthony testified that he went with defendant to investigate the burning of the defendant’s house sometime in 1902, and they met Joe Mell in Piedmont. Mell said he had seen a man come from behind a building and get some shavings and described the man, and witness asked if it was Ed Daniels and Mell said, “No. I have told Dr. Bates who it was and he knows.” The description he gave was a very good one of plaintiff.

John Hall testified that John Ballard told him to tell defendant that he might have some good testimony for him for twenty-five dollars.

The correctness .of the instructions will he considered in connection with the objections thereto.

OPINION.

I.

Counsel correctly assert that the issue was not whether plaintiff was guilty of the charge of arson which was based upon defendant’s affidavit, but did defendant have probable cause for commencing said prosecution?

The circuit court instructed the jury in plaintiff’s behalf: “Before you can find defendant was justified or excused in making the affidavit against the plaintiff and causing him to be arrested, you must find that he had probable cause to believe that the charge made against plaintiff was true; and by ‘probable cause’ is meant a reasonable ground for believing plaintiff guilty, supported by facts and circumstances sufficiently strong of themselves to warrant a prudent or cautious man in the belief that the plaintiff was guilty of the offense with which defendant charged him; and unless you find that defendant was so justified then you will find that the prosecution against plaintiff was without probable cause.”

In this same connection the court gave the following instruction for defendant: “The jury are instructed that the information that would justify the making of a criminal complaint, against another, for the purpose of having him arrested, must be of such character and obtained from such sources, that men, generally, of ordinary care, prudence and discretion would feel authorized to act upon it under similar circumstances. And in this case, if the jury believe from the evidence that the defendant made the alleged affidavit for the arrest of plaintiff, and that he was arrested in consequence thereof, then it is a question of fact to be determined by the jury from the evidence whether the defendant, when he made the complaint, acted upon such information as men of ordinary care, prudence and discretion Avould have been warranted in acting upon under similar circumstances.”

Error is predicated upon the giving of this last quoted instruction on the ground that it conflicts with the instruction given for plaintiff and is an incorrect statement of the law in that it advised the jury that “information such as men of ordinary care, prudence and discretion would feel authorized to act upon, under similar circumstances,” would justify defendant in making the criminal charge against plaintiff, whereas plaintiff insists that nothing short of a knowledge of the existence of facts sufficiently strong of themselves to warrant a prudent or cautions man to believe plaintiff was guilty of said offense, would justify the institution of a criminal prosecution.

We think the contention of plaintiff on this point is hypercritical. When it is said by the court that in these cases the question is not whether there was in fact a sufficient cause for the prosecution (for the acquittal shows that there was not), but whether the prosecutor as a reasonable man believed there was, it does not mean that a prosecuting witness must know of his own knowledge all the facts upon which such prosecution must rest, but that as a reasonable and prudent man he had reasonable grounds to believe the plaintiff was guilty, and in coming to such a conclusion he must have information of such a character and obtained from such sources that men of ordinary care, prudence and discretion would feel authorized to act upon it in similar circumstances. We think the plaintiff has no ground of complaint as to these two instructions. They were as favorable as he had the right to request.

II.

Plaintiff complains that the verdict was not justified by the evidence. The burden was on the plaintiff to establish his case. Defendant testified that he was the'owner of the house that was burned; that at the time it was destroyed he was a resident of Cape Girardeau, and when he came back to Piedmont to reside he received information that led him to believe it was burned by an incendiary. He had been charged with burning his own property, but the charge was dismissed as without foundation. He began to investigate and found that plaintiff had a printing outfit in said building which was insured for $300, and had collected the insurance, whereas a witness had told defendant that plaintiff had purchased the same outfit for fifty dollars from a woman. He also produced evidence to the effect that plaintiff’s reputation for honesty and integrity was bad; that plaintiff was seen on the evening that the property was burned talking with John Berryman, whose reputation was shown to have been very bad for honesty, integrity and burning property; that soon after plaintiff and Berryman were seen talking together and on the same evening, Berryman was seen to give Morris some money and heard to say to him, ‘ ‘ Give it to Daniels, and he will know what it is for.” Défendant was also told by John Ballard that Joseph Mell had seen plaintiff go towards defendant’s building that was burned, with somh shavings and an oil can about ten minutes before the fire broke out.’ And defendant testified that Mell told him the same story. If the jury believed that these things were told defendant, surely the circuit court could not, nor can this court say as a matter of law that an ordinarily reasonable and cautious man would not have believed plaintiff burned the house and have had reasonable grounds for so doing. The circuit court directed the jury this was a question of fact for them to determine, and we think, correctly.

While Mell denied telling defendant this story, defendant was not precluded by Mell’s evidence. The jury saw Dr. Bates and Mell and it was their province to believe or reject the testimony of either or both. They seemed to have believed defendant, and rejected the testimony of Mell, bnt there was nothing to show, up to the time Mell told Dr. Bates he had seen plaintiff in the compromising position near the building just before it was seen on fire, that Mell was a man of bad reputation for truth and veracity or morality and integrity and such that a reasonably prudent man would not believe his statements. We think the court properly submitted to the jury the question whether the defendant when he made the complaint by filing the affidavit, acted upon such information or circumstances as a man of ordinary care, prudence and caution would have accepted and believed under similar circumstances, and their verdict is not without sufficient evidence to support it, if they credited the testimony of defendant. [Vansickle v. Brown, 68 Mo. 634.]

III.

As to the exclusion of the deposition of John Berryman.

Without reproducing this deposition it is sufficient to say it was taken in Nacogdoches county, Texas, without any appearance or cross-examination by defendant. In substance, he testified to an offer by Dr. Bates, the defendant, to Berryman to satisfy a debt of thirty dollars due Bates from the witness, and another account for twenty dollars for which the witness was surety, and to pay him fifty dollars in cash, if lightning would strike the building; that he, witness, told one Daniels that defendant would pay a sum to have the building burned.. That Daniels, being drunk, a few days after the fire, told witness that he, Daniels, had burned the building. Now Berryman swears he had nothing to do with the fire, nor did he cause Daniels or any one else to burn it. He never made any demand on defendant for the fifty dollars.

All of this testimony was objected to when it was offered, but tbe court admitted it. Subsequently tbe court withdrew it from the jury.

It requires no argument or authority to show that the alleged statements of Daniels were wholly incompetent, hearsay of the most pronounced kind. The statement of Berryman as to what occurred between him and defendant was utterly irrelevant to the issue on trial and was properly excluded. As to the impeachment of Berryman, it can not be seen how it could have been hurtful, if there was none of his evidence left for the jury to believe 'or disbelieve. Moreover, the deposition had been admitted once and the jury had heard it read.

As to the proposition that it was not competent to impeach Berryman’s reputation at Piedmont where he had! resided nearly all of his life until about three years before the trial of this cause. Berryman had only resided at Nacogdoches for about four months, not long enough to have formed a reputation one way or the other. While this court has approved the rejection of proof of reputation after three years, it has not announced an ironclad rule. Ureenleaf, in his work on Evidence, vol. 1, sec. 461 d, 1, says: “Character is a continuous quality, not quickly changed or changeable. The character of the witness at the time of testifying is that which affects his truthfulness; but his-character at another time may well be considered’ as evidencing his character at the time of testifying. . . . One view, and the correct one, is that character at any preceding time is admissible, provided it is not too remote in time to have real probative value. A second view is that prior character is not to be resorted to unless for some reason it is difficult or impossible to show present character.”

While reputation must ordinarily be proven by witnesses residing in the neighborhood in which the witness whose reputation is sought to be impeached resides, this also is subject to exceptions. Thus, in State v. Miller, 156 Mo. 76, a witness was offered to testify to the defendant’s general reputation for truth in the neighborhood of Troy, Kansas, where he and defendant had lived. Some nine years previous to the trial the witness had moved to St. Joseph, Missouri, but had visited Troy from time to time, and when he lived there was sheriff of the county. He testified he knew defendant’s reputation from what the people generally said about him when witness was visiting there. It was said: “This court has approved the rejection of testimony that covered a period of over three years, but the question here presented' is whether a witness who had known another witness’s reputation for truth for nine years and down to the period of the trial is incompetent to speak of such reputation, which has remained the same all the time. We think not.”

Now in this case Berryman’s reputation was known in Piedmont by the witnesses who resided there up to the time of his removal from that place. Having no established residence elsewhere we think it was no violation of the rule to permit the witnesses who knew his reputation in that place up to his removal to state what it was.

The testimony of Harry Bates stands on an entirely different footing. This was permitted because it had been communicated to defendant' and was to be considered in determining whether defendant believed plaintiff was guilty and whether he had reason to so believe.

In our opinion, the cause was properly submitted to the jury and there is no error in the record which would justify a revérsah of the judgment.

Judgment affirmed.

All concur.


text:
    CHARLES T. JONES, Appellant, v. BEN J. EDEMAN et al.
    Division Two,
    November 23, 1909.
    1. PROCESS: Publication: Affidavit. Where the suit is against natural persons and the summons is by publication, the affidavit upon which the order is based need not sta,te that the ordinary process of law cannot be served on defendant “in this State.” The words “in this State” are a necessary part of the affidavit only when the defendant is a foreign corporation.
    2. MORTGAGE: .Married Woman: For Husband’s Benefit. It is perfectly competent for a married woman to mortgage her lands to secure the payment of her husband’s debts, and when she does so she stands in the relation of surety for him, even though she does not sign the mortgage note.
    3. -: -: -: Judgment in Another State. The taking of a judgment, in another State, against the husband alone on his individual note, does not have the effect of releasing his wife on her mo:rtgage given to secure the payment of that note.
    4. -: -: -: -: Collateral Attack. The defense that the wife, who had mortgaged her lands to secure the payment of her husband’s individual note, was released on her mortgage by the taking of a judgment against him alone in another State, should be made in the suit brought against her and him to foreclose the mortgage, and if not made then is not open to her or her vendee in a subsequent suit in ejectment.
    5. EJECTMENT: Instruction on Limitations. Where defendants established title by a valid paper title, it is unnecessary to consider the propriety of giving an instruction on their right to’ claim title by adverse possession.
    Appeal from Chariton Circuit Court. — Hon. Jno. P. Butter, Judge.
    Affirmed.

      L. H. Waters for appellant.
    (1) The process in the foreclosure proceedings was void. It wa.s not stated in the affidavit that the ordinary process of law could not be served on defendants in this State. As the law stood prior to the Act of 1887 service by publication could be had on any non-resident defendant whether an individual or corporation. Process could be served on any non-resident found in the State and upon the agent of any nonresident corporation having an office in this. State. Laws 1881, p. 174. At the time of the passage of the Act of 1887, it is a matter of common knowledge that many non-resident corporations and thousands of nonresident business and professional men were engaged! in business in this State and particularly in St. Louis, Kansas City and St. Joseph and spent the business hours of each day within the jurisdiction of our courts. The laws of 1881 required that a summons should be served on a defendant, and on the agent of non-resident corporations having an office in this State. Laws 1881, p. 174. The Legislature never intended to extend the protection of this statute to agents of non-resident corporations and to exclude therefrom the non-resident business man who might as easily be served. Statutes must be construed with reference to the objects which prompted and induced their enactment and the mischief they were intended to remedy. Spitler v. Young, 63 Mo. 42. To legalize the issuance of process and to secure jurisdiction in such cases the requirements of the statute should be observed with scrupulous accuracy. Russell v. Grant, 122 Mo. 161. The words “in this State” are important and significant. Hedrix v. Hedrix, 103 Mo. App. 46. While Hedrix v. Hedrix was overruled in Harbut v. Durden, 116 Mo. App. 512, no reason was given for the change of front and with all due respect to that court, we think none can be found. (2) The Nebraska judgment operated to discharge the liability of Mrs. Rolfe on her mortgage. She was in the position of a surety and anything done by the mortgagee that would discharge a surety discharges her. 1 Jones on Mort., secs. 114, 942; Cross v. Allen, 141 H. S. 528.

      J. A. Collett and H. J. West for respondents.
    (1) The affidavit for the order of publication was sufficient. This point has been directly decided by both courts of appeal. Harbert v. Durden, 116 Mo. App. 512; Paddock v. Paddock, 91 S. W. 398. We also cite on this question: Coombs v. Crabtree, 105 Mo. 292; Evarts v. Lumber and Mining Co., 193 Mo. 433. This suit was brought soon after the case of Hedrix v. Hedrix, 103 Mo. App. 40, was decided by the St. Louis Court of Appeals, and the bringing of it was evidently prompted by the opinion in that case; but since that case was decided, the Kansas City Court of Appeals has decided the question the other way in the Paddock case, and the St. Louis Court of Appeals has overruled the Hedrix case in the Harbert case. This question has been recently determined by this court, in accordance with our contention. Keaton v. Jorndt, 220 Mo. 117; Huiskamp' v. Miller, 220 Mo. 135; Van Natta v. Real Estate Co., 220 Mo. 373. (2) The Nebraska judgment did not have the effect of releasing Mrs. Rolfe on her mortgage. Where the wife mortgages her land to secure her husband’s debt her contract is one of suretyship ; and where the creditor does something to change the interests of the surety, or damages him by releasing securities, or makes a valid contract extending the time of payment, the surety is released; but the surety is not released merely because the creditor takes judgment against the principal or tries to collect his debt from the principal. Neither could the plaintiff avail himself in this case of such release, even if the effect of that judgment had been to release Mrs. Rolfe. The court in the foreclosure case had jurisdiction of the subject-matter and of the parties, and the merits of the judgment cannot be inquired into in this collateral proceeding. Gray v. Bowles, 74 Mo. 419; Holt County v. Cannon, 114 Mo. 514; Rabb v. Bruere, 23 Mo. App. 604.
   GANTT, P. J.

This is an action in ejectment for one hundred and sixty acres of land, the northeast quarter of section 12 in township 55 north, of Range 21 west, in Chariton county, Missouri.' Edeman, the original defendant, was the tenant of Lois and Edna Kennedy. The Kennedys were made defendants on their application. Harriett E. Rolfe is the common source of title.

Plaintiff’s title was acquired by deed from Harriett E. Rolfe and husband, of date May 4, 1905'. Defendants’ title was deraigned from W. S. Woods, who purchased under a judgment foreclosing a mortgage given by Harriet E. Rolfe and husband to Charles Jewett, bearing date January 20, 1890, to secure the husband’s note for $1,500, of which Woods was the owner at the time of the foreclosure in 1893. Previously thereto Woods had obtained a judgment against Rollin M. Rolfe, the husband, on said note, in Oteo county, Nebraska, which fact appears in the petition to foreclose the mortgage.

The decree of foreclosure was rendered at the April term, 1893, of the circuit court of Chariton county, and Woods purchased the lands at the execution sale under said judgment, on October 21, 1893. In the foreclosure proceedings the defendants were summoned or notified by publication and the judgment was by default.

The plaintiff herein asserts the invalidity of the decree of foreclosure on two grounds: first, that the affidavit on which the order of publication was based was insufficient to authorize said publication, and, second, that the effect of the Nebraska judgment was to discharge Harriet E. Rolfe, the owner of the mortgaged lands. The affidavit alleged that “Rollin M. Rolfe and Harriet E. Rolfe are non-residents of the State of Missouri and the ordinary process of law cannot be served on them.”

I. Plaintiff insists the affidavit was fatally defective in not stating that the ordinary process of law conld not be served on said defendants in tins State. This action seems to have been commenced soon after the promulgation of the decision of the St. Louis Court of Ajopeals in Hedrix v. Hedrix, 103 Mo. App. 40, which sustained the contention of counsel for plaintiff in this suit; but the St. Louis Court of Appeals overruled that decision, Harbert v. Durden, 116 Mo. App. 512, and the Kansas City Court of Appeals in Paddock v. Paddock, 91 S. W. 398, ruled adversely to Hedrix v. Hedrix. In the very recent decisions of this court in Keaton v. Jorndt, 220 Mo. 117; Huiskamp v. Miller, 220 Mo. 135 and Van Natta v. Real Estate Co., 221 Mo. 373, the legislation on this topic which has finally eventuated in section 575, Revised Statutes 1899, was traced by this court. The Revised Statutes of 1889' were in force at the time of the commencement and prosecution of the foreclosure suit. Section 2022 of the Revised Statutes of 1889 was in these words: “If the plaintiff or other person for him shall allege in his petition or at the time of filing the same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are non-residents of the state, or is a corporation of another state, kingdom or country, and cannot he served in this state in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this state, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the nonresidents or absentees, notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition,” etc.

Omitting the words in italics we will have the statute as it existed prior to the revision of 1889. [Sec. 3494, R. S. 1879.] As pointed out in Huiskamp v. Miller, supra, prior to the revision of 1889, a foreign; corporation might he served by publication even though it had an office and was doing business in this State, and the purpose of this change was to require service by ordinary process of law in this State whenever such service was possible. Prior to this provision, a corporation of another state, kingdom or. country might be served by publication upon the mere affidavit that it was a non-resident, and if the section as revised had been intended to apply to all non-residents,. the words “or is a corporation of another state, kingdom or country” would not have been added. We think it is clear, as was ruled in Huiskamp v. Miller and Keaton v. Jorndt, supra, that the clause, “cannot be served in this state in the manner prescribed in this chapter, ’ ’ has reference alone to the corporation of another state, kingdom or country, and has no reference whatever to natural persons who were, or are, non-residents of this State. See also Tufts v. Volkening, 122 Mo. 631. The plaintiff’s contention, therefore, that the circuit court acquired no jurisdiction over Rolfe and wife by the order of publication is unsound.

II. It was perfectly competent for Mrs. Rolfe to mortgage her land to secure her husband’s debt and it is true as contended by plaintiff that when she did this she stood in the relation of a surety for her husband. But the taking of a judgment in Nebraska against her husband on this debt, which was primarily his obligation, did not have the effect of releasing Mrs. Rolfe on her mortgage. It is also plain that this defense is not open to the plaintiff at this time, because the circuit court of Chariton county had jurisdiction of the subject-matter of said suit and of the parties, and the merits of that judgment cannot be inquired into now in this collateral proceeding. Had it been a defense at all it was open to Mrs. Rolfe in the foreclosure proceedings and neither she nor the plaintiff can be heard to urge it now. [Gray v. Bowles, 74 Mo. 419; Holt County v. Cannon, 114 Mo. 514.] As the defendants established title to the land by a perfectly valid paper title, it is entirely unnecessary to inquire into the propriety of the giving of the 8th instruction on their right to claim title by adverse possession. The judgment of the circuit court was right and is affirmed.

Burgess and Fox, JJ., concur.


text:
    ADAM OFFENSTEIN, Appellant, v. AUGUST GEHNER.
    Division Two,
    November 23, 1909.
    1. TRUSTEE: Presumption. The presumption is that the trustee in a deed of trust acted in good faith, and applied the trust moneys according to the trust contract, and the burden is on the parties who charge him with misapplying or holding back a part of the funds to establish that fact.
    2. -: Accounting: Pleading. Where the trustee in his answer to the mortgagor’s petition charging that he had held back moneys received by him at the sale in excess of the debt and costs, alleges that he sold the premises in pursuance to his powers as trustee and states the amount received from each piece of property, and then sets forth a full itemized account of the debt, interest and taxes paid, and strikes a balance showing a part of the principal debt secured by the deed of trust is unpaid, this is not a plea of payment, but an accounting, and plaintiff’s course is to surcharge and falsify the items of the account, and failing to do so and no evidence being offered the judgment should be for the trustee.
    3. -: Pleading: No Evidence: Payment: Judgment. Plaintiff alleged that he conveyed to defendant in trust certain lots to secure notes amounting to $15,000, and that defendant subsequently sold the lots for $25,000, leaving a balance, after paying the notes and interest, of $5,000, which defendant refused to turn over. Defendant answered by general denial, and by special plea, setting up the terms of the deed of trust, charging that thereby plaintiff agreed to pay the interest and taxes, but had failed to do so, and thereupon he had sold the property, and after applying the money to payment of taxes and costs and the balance on the debt, there remained $2,000 of the principal debt unpaid, and stating in detail the items of an account showing said unpaid balance. Plaintiff’s reply was a general denial. He offered no evidence, and neither did defendant. Held, That defendant did not stand in the relation of an ordinary debtor to plaintiff, and the disbursements as pleaded did not amount to a plea of payment and the burden was not upon him to prove the correctness of his account, but he stood in the relation of trustee to plaintiff and the holders of the note, and having pleaded his account the burden was on plaintiff to surcharge and falsify its items, and the judgment was properly for plaintiff.
    4. NONSUIT. Plaintiff cannot complain that he was not permitted to take a nonsuit, if he had ample opportunity to take a nonsuit before judgment was rendered against him, and made no request to be allowed to do so.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel-D. Fisher, Judge.
    Affirmed.

      Henry B. Davis for appellant.
    If the property was conveyed to defendant for sale, and if defendant sold and received the proceeds, then it is his duty to account therefor. It is sufficient for plaintiff in the first instance to show these facts, and thereupon the burden of proof falls on defendant to make good his accounting and discharge himself of the obligation which the law imposes on him in such a case. No authority is required for the proposition that the burden of proof is on him who alleges payment. Plaintiff, at the trial, submitted the case on his part, upon the ground that the answer admitted all that it was necessary for him to show in the first instance, and we submit that he was right. It is certainly true that the affirmative allegations of defendant’s answer, necessarily and without doubt, admit every allegation of plaintiff’s petition necessary to give plaintiff a good cause of action in the first instance. In effect, the answer sets up the conveyance of the property to defendant by plaintiff, that defendant sold the property and received the proceeds, amounting to thirty-two thousand! dollars, and pleads the proper expenditure thereof. In effect, payment is pleaded by defendant. The burden of proof is on defendant to make his answer good. The answer pleads expenditure for costs of sale, for trustee’s commissions, for payment of notes, for sprinkling taxes, for right-of-way, for general taxes, and defendant seeks credit for a large amount of money which he claims was expended for sewer bills. Certainly, it was defendant’s duty to shojv: First, that he actually made these expenditures; second, that the amounts paid were reasonable; and, third, that they were legal payments and such as would in law discharge him from his obligation to plaintiff. The court cannot assume that any of these alleged payments or expenditures were reasonable or proper, without proof to that effect.

      Kehr & Fittmann for respondent.
    (1) The petition states no cause of action. Upon the facts recited, neither assumpsit nor debt will lie, and hence no cause of action at law is stated. Upon the facts attempted to be stated, the only remedy is in equity to compel the trustee to account, if no account, after demand, has been rendered, or to surcharge and falsify the account if rendered. Flint on Trusts and Trustees, sec. 322; 27 Am. and Eng. Ency. Law (1 Ed.), p. 293; Cearnes v. Irving, 31 Vt. 604; Smith v. Smith, 88 Cal. 577; Garner v. Reis, 25 Minn. 475; Lycan v. Miller, 56 Mo. App. 1. c. 82. (2) The answer was a general denial. The burden of proof therefore was on the plaintiff. R. S'. 1899, sec. 604. (3) The presumption is that the trustee has discharged his duty. If his conduct is sought to be impeached, it must be by bill specifically charging his misconduct and upon that the plaintiff has the burden of proof.
   GANTT, P. J.

This is an action in two counts, in the first of which plaintiff states that by his deed of trust of the 22nd of July 1896, he conveyed certain real estate in the city of St. Louis to the defendant, Gehner, in trust, to sell the property and pay to the holder or holders of certain notes the sum of $15,000, with interest and costs of sale; that Gehner subsequently sold the property for $25,000, “Leaving after the payment of said notes in said deed of trust and the costs of sale, a balance of $5,000, which defendant has declined and refused to pay although demanded. ” The second count alleged that on the 4th of August, 1897, plaintiff conveyed to the defendant in trust for plaintiff and others, a large tract of real estate in the city of St. Louis; that said conveyance was made to said defendant for the purpose of selling said property and paying certain notes in said deed of trust described, amount not stated; that defendant in June, 1904, sold the property for $7,700, paid the notes in the deed of trust described, and costs of sale, amount not stated, leaving a balance of $5,000' in his hands, which he neglects and refuses to pay plaintiff, although demanded.

The answer was a general denial of each and every allegation in the petition and the two counts thereof. As a further defense defendant alleges that the deed of trust executed by the plaintiff and his wife, dated the 22nd of July, 1896, was in trust to secure the payment of a principal note for $15,000' and six interest notes for $450 each, with a covenant therein on the part of the mortgagor to cause all taxes and assessments, general and special, to be paid whenever imposed upon the property, and that all sums, with-interest, which the trustee or the holder of the notes should expend to protect the title or possession of the premises should likewise be secured by the deed of trust; that subsequently the plaintiff and his wife executed a second deed of trust on the property to secure a principal note of $10,000 and interest; that plaintiff made default in the payment of the notes secured by the said deeds of trust, allowed the taxes, general and special, to become delinquent, and judgments to be rendered thereon y that for the protection of the title, the holder of the notes advanced the money to pay the taxes, liens and judgments and that sale was made under the first deed of trust according to its terms. The trustee then sets forth an itemized account charging himself with the amounts realized for the property and taking credit for the payments made under the terms of the deed of trust; each item of credit being set forth in detail, and showing as the result of the account, that more than $2,000 of the debt secured by the deeds of trust remained unpaid, and is still due the creditors by the plaintiff.

In his reply the plaintiff did not surcharge and falsify a single item of the account so set forth, but made a general denial. The cause was referred and when called for a hearing before the referee, the plaintiff declined to introduce any evidence. Whereupon the defendant also submitted the case upon the pleadings and asked for judgment in his favor.

The referee made the following report and judgment: “There being an utter failure to offer any evidence whatever of the matters, or any part thereof, set out in the petition, and there being no allegations in the answer which can be construed or tortured into an admission upon which the plaintiff would be entitled to judgment, and inasmuch as all matters alleged in the petition are met with' a. general denial in the answer, there is in the judgment of the referee but one finding that can be made, and that is, that judgment be entered in favor of the defendant and the costs awarded against plaintiff. ’ ’

The plaintiff filed exceptions in the circuit court to the report of the referee, but the court overruled his exceptions, confirmed the report and rendered judgment for the defendant. In his motion for new trial, the plaintiff does not specifically refer to his exceptions to the referee’s report, nor does he assign the overruling of his exceptions as a ground for new trial. He does assign-that the judgment “is against the pleadings in the ease” and against the law. The plaintiff appeals.

I. The only ground upon which the plaintiff seeks to reverse the judgment of the circuit court is his assumption that the defendant stood in the relation of an ordinary debtor to him, and that the disbursements by the defendant as pleaded in his answer amounted to a plea of payment and therefore the burden was on the defendant to prove the correctness of his account as trustee in the first instance. 'We think the circuit court unquestionably was right. As meager as the plaintiff’s petition is, it discloses that the defendant stood in the relation of trustee to the plaintiff and the holders of the notes secured by the two deeds of trust. The petition did not set out the terms of the trust, did not show the amount of the debt, interest and costs, and furnished no substantial basis upon which to determine a surplus. But the defendant in his answer set forth the full purport of the two deeds of trust, the property, the amount of the debt, the interest and the covenant on the part of the plaintiff that if the holder or holders of the notes or the defendant or his successor in said trust should pay out moneys to protect tbe title to the said premises, then all such moneys should be secured by the deeds of trust. The defendant then showed that there had been a default in the payment of the notes and interest and a request upon the part of the holder that defendant should sell the said property to satisfy the said notes, interest and charges, and that he did sell the said premises in pursuance of his powers as trustee, stating the amount received for each piece of property, and then set forth a full itemized account of the debt, interest and tax charges, both general and special, and struck a balance, from which it appeared that after applying the proceeds, there was still $2,000 unpaid upon the principal note secured by the second deed of trust. The contention of the plaintiff is and was that this was a plea of payment. We do not so understand the law. We think it was an accounting by a trustee, and that plaintiff’s remedy, if any, against the defendant, was to surcharge and falsify the items of the account thus rendered, and that the burden was upon him to establish a breach of the trust on the part of the defendant. The presumption is that the trustee has acted in good faith, and has done his duty and the burden is on the plaintiff to allege and prove the contrary.

In 27 Amer. and Eng. Ency. Law (1 Ed.), 293, it is said: “In drawing a bill against the trustee, the pleader must bear in mind that there is a presumption that the trustee has performed his full duty, and he must set forth specifically all facts necessary to rebut this presumption.”

We think that the plaintiff had the laboring oar and that when he failed to offer any evidence to substantiate the allegations of his petition, the referee correctly held that he had failed to make his case, and therefore found against him. And we think the circuit court properly confirmed the report of the referee, and that plaintiff has no cause to complain whatever.

The contention that the plaintiff should have been allowed to take a nonsuit is without merit, as the plaintiff had ample time to take a nonsuit before the final judgment was rendered against him, but made no request to be allowed to do so.

The judgment of the circuit court is therefore affirmed.

Burgess and Fox, JJ., concur.