text:
    THE STATE v. MORRIS WEINBERG, Appellant.
    Division Two,
    November 13, 1912.
    1. RECEIVING STOLEN GOODS: Presumption from Possession: Knowledge: Inferred. In a prosecution for receiving stolen goods, knowing the same to have been stolen, naked possession of the property recently stolen is not alone sufficient to raise a presumption of guilt, as in the case of larceny; but in addition to proof of possession, it is essential to a conviction that the testimony tend to prove knowledge of the accused, at the time he received the property, that it was stolen. But direct testimony of such knowldge is not required; it may be inferred from facts, and circumstances.
    2. -: Facts From Which Knowledge May Be Inferred. Defendant was a merchant tailor and kept a tailoring shop, and was indicted for receiving a man’s black overcoat with a muskrat collar, of the value of $87.50, the property of the Grand Leader, a retail clothing house, knowing the same to have been stolen; and it is held, that the facts and circumstances in evidence were sufficient to authorize an inference by the jury that defendant knew the overcoat had been stolen at the time he claims he bought it for less than one-third its value from an unknown man who represented himself as a traveling salesman.
    3. -: instruction: Collateral Mátter: Other Stolen Goods: For What Purpose to be Considered. In determining the guilt, or innocence of defendant of receiving the stolen overcoat mentioned in the information, knowing it to be stolen, testimony that the merchant about the same time lost nine similar overcoats, and that four of them were found in defendant’s possession, and of the manner in which he had disposed of them, was competent to show his guilty knowledge; but it was not incumbent upon the court to give an instruction telling the jury for what purpose that testimony was competent, and cautioning the jury to consider it only in determining whether or not the defendant received the one overcoat mentioned in the information, knowing it to be stolen. Even though such an instruction, if asked, might be given without error, the failure of the court to give it is not error, for the purpose for which such testimony is admitted is not a question upon which an instruction is necessary for the information of the jury in making up their verdict.
    Appeal from St. Louis City Circuit Court. — lion. Wilson A. Taylor, Judge.
    Affirmed.

      C. Orrich Bishop for appellant.
    (1) The verdict in the canse was unfair and unjust. Assuming that the property mentioned in the information was proven to have heen stolen, it clearly appears from the testimony that the connection of ap^ pellant with that property was very different from that usually shown in cases of guilty receiving, (a) The testimony as to the circumstances under which the purchase of the alleged stolen property was made clearly shows that such purchase was openly made, without concealment, subterfuge, secrecy, or under cover of darkness, but in broad daylight, in a place upon a populous thoroughfare and in the presence of witnesses, (b) The representations of the supposed thief were such as might have imposed upon “a reasonably prudent man, exercising ordinary caution, on his guard;” the vendor was apparently a guest at a near-by popular hotel; and his appearance, dress and manner such as to indicate that he was what he represented himself to be. (c) The property alleged to have' been stolen after coming into the possession of appellant was treated as honest merchandise, exposed to open view, advertised for sale and exhibited to prospective buyers in the usual course of trade; indeed, one article was publicly sold, and publicly worn for about two weeks by one of the purchasers, (d) • It is incredible that a man of ordinary caution, reasonably prudent, on his guard (if indeed appellant was such a man), would openly and above board, in his place of business, in the locality where situated, expose for sale, and invite persons to buy, property which he had cause to believe or be satisfied was stolen; or that he would openly call attention to his purchase and ask opinions as to his “bargain.” (e) There was no such discrepancy in price paid for the articles and their actual value as usually accompanies a purchase of known stolen property. True, the testimony as to the coat taken from Chiswell’s pawnshop indicates that the Grand Leader’s price for it was $87.50, hut there is no testimony whatever as to the value of any other garment found in possession of appellant. The manager of the Grand Leader testified that a garment was “missing” valued at $325, but it was never recovered; that a muskrat lined coat found at Dunn’s was valued at $125, but this garment was never in the possession of appellant; and there was no evidence as to the value of any other., (f) The testimony that the garments in question were stolen was by no means conclusive. The manager of the Grand Leader testified as to the manner in which the fur garments were kept and handled in their store; that he could not see how anybody could come in the place where the coats were and carry them off; and yet for all he knew a coat might be sold by a dishonest salesman, without reporting the sale, and the money appropriated; all he could .say was that the articles were “missing,” with no report of sale. Against this testimony, all consistent with appellant’s innocence of the charge of which he was convicted there was no evidence of any suspicious conduct on his part. (2) This court has recently, in the Hyde case, 234 Mo. 200, gone fully into the law regarding the admission of alleged offenses other than that charged in the information; and it is an exceedingly delicate matter, trenching closely upon the legal right of the accused to be specifically informed of the exact charge he is to meet. In cases of receiving stolen property knowing it to have been stolen, I do not question the right of the State to introduce, nor of the court to admit, testimony tending to show the reception of property other than that specified in the information, if it has a tendency to prove the scienter * but this is a matter of law, understood by the profession and not by the laymen; and where the jury are permitted to receive such testimony, how are they to apply it, in its legal and restricted effect, without being instructed as to the law applicable thereto? The statute provides that the court, whether requested or not, must instruct the jury upon all questions of law arising in the case which are necessary for their information in giving their.verdict; and a. failure to do so, in a felony case, necessitates a new trial. In the recent Rasco case, 239 Mo. 535, the court said that this was a collateral matter; possibly and probably so in that case, where four persons were killed at the same time and thé house in which they were slain was burned with the manifest purpose of destroying evidence of the crime; there each killing was a part of the res gestae, and one could hardly be shown without evidence of the others. But in this case, a very different phase is presented. There could hardly be a question of the scienter in the Rasco case; but in the case-at bar, scienter was the very gist of the offense charged. Insufficient as the whole evidence was to warrant the conviction, it -must be conceded that the State’s case would have been utterly worthless if based solely upon the alleged theft of the property described in the information and its reception by appellant. The testimony as to other alleged larcenies and receivings, being exceptions to the- general rule of evidence in criminal cases, and having a restricted legal place in the case, appellant was entitled, as a matter of right, to have the jury instructed as to how they should consider that testimony as bearing upon the question of his guilt or innocence; otherwise they may have believed that they were warranted in convicting bim upon evidence of matters not charged, inasmuch as that evidence had been delivered to them with the sanction of the court. Hence the matter was not collateral, but integral, of the very essence of the charge, and thus coming strictly within the command of the statute.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    • (1) Evidence as to other sales of stolen goods by King to appellant was competent as tending to show guilty knowledge in the purchase on which the information was based. State v. Goldblat, 50 Mo. App. 189; State v. Richmond, 186 Mo. 86. (2) Instruction 5 is: “The mere naked fact of the possession of said property by defendants, if such is the fact, raises no presumption that defendants knew such property was stolen. ’ This instruction was favorable to the appellant, as it stated to the jury the fact that appellant had the possession of said goods was no evidence and raises no presumption that he knew such property was stolen.
   KENNISH, J.

— Appellant, Morris "Weinberg, and his son, Julius Weinberg, were jointly prosecuted by information in the circuit court of the city of St. Louis, charged with grand larceny in the first count, and with the felony of receiving stolen goods, knowing the same to be stolen, in the second count. Upon a trial appellant was convicted under the second count and his punishment assessed at a term of two years in the penitentiary. From the judgment entered he appealed to this court. ITis- codefendant, Julius Weinberg, was acquitted.

The property described in each count of the information was the same, to-wit, one man’s black overcoat with muskrat collar, the property of the Stix, Baer & Fuller Dry Goods Company, of the value of $87.50.

The evidence for the State tended to prove these facts, namely: Stix, Baer & Fuller Dry Goods Company, a corporation known as the Grand Leader, is engaged in the retail clothing business in the city of St. Louis, and about the middle of October, 1910, received from the city of New York a consignment of eleven high-priced overcoats. One of these coats was missed from the stock on the 29th day of November, 1910, and several others were missing within a few days thereafter. Detectives were employed to locate the missing garments. On December 12 one of the coats was found at Dunn’s pawnshop in said city, where a few days before it had been pawned for thirty dollars by a person giving his name as Condon. On the said 12th d- of December appellant’s son, Julius Weinberg, called at the said pawnshop, having the ticket issued to Condon for the coat, and offered to Redeem it, saying a friend of his in the hotel had asked him to get it for him. A detective named Usher working on the case came into the pawnshop at the time, and young Weinberg, in answer to an inquiry, stated to Usher that he got the ticket that morning from a man named King, who called at their store, but that he did not know where he was at that time. Usher then went to appellant’s place of business and appellant told him he got the ticket two weeks before from a man supposed to be stopping at the Laclede Hotel, just across the street from appellant’s place of business. Appellant was asked by Usher if he had any more such tickets or fur-lined overcoats and answered that he had not. On December 28, 1910, the black overcoat with the muskrat collar, described in the information, was found in a pawnshop conducted in said city by a man named Chiswell. This coat had been pawned a week before by a bartender who had recently purchased it from a man named Fischer, who in turn had purchased it from appellant on November 22, 1910', as shown by a written receipt for the purchase price which was introduced in evidence. When the possession of this coat was traced to appellant he was asked if he had sold it to Fischer. He first said he -could not recall it, but later said he had. Two detectives then went to appellant’s home and found there, apparently concealed, three of the fnr-lined coats which had been missed from the Grand Leader stock.

Appellant and his codefendant testified that they purchased the coats and pawn ticket from a man giving his name as John King; that they first bought two coats for which they paid twenty-five dollars each, and about two weeks later bought two others for twenty dollars each, and shortly thereafter bought the pawn ticket for one dollar, without having seen the coat called for by the ticket. Appellant testified that after purchasing the coats he placed them on sale in his store where they could be seen and were seen by the public; that after selling one — the coat described in the information — and failing to get his price for the others, he took the three remaining garments to his home for use by himself, his son and his wife, one of the garments being a lady’s fnr-lined coat, and that they had publicly worn them. He further testified that King represented himself as a travelling salesman, and that these coats which he sold to appellant and the one left at Dunn’s pawnshop were samples which he was anxious to dispose of, and that the coats were bought and received by him in good faith without knowledge that they were stolen. There was testimony tending to corroborate appellant and his son as to the purchase of the coats, and that a man calling himself John King, of the personal appearance described by appellant, had been seen in appellant’s store negotiating for the sale of the coats and had occupied a room at the Planters’ Hotel in said city. Other material facts will be stated -in the course of the qpinion.

I. The first ground upon which appellant urges a reversal of the judgment is that the verdict is not supported by sufficient evidence..

In the consideration of this assignment of error we must review the testimony under the law as decided in the ease of State v. Richmond, 186 Mo. 71, and reaffirmed in later decisions of this court. The rule of law established in these cases is that naked possession of property recently stolen is not alone sufficient to raise a presumption of guilt, as in the case of larceny. In addition to proof of possession it is essential to a conviction that the testimony should tend to prove' knowledge of the accused, at the time he received the property, that the same was stolen. iBut direct testimony of such knowledge is not required. It may be inferred from facts and circumstances. The rule is stated in 10 Encyclopedia of Evidence, pi G70, as follows :

“Knowledge that goods were stolen need not be shown by direct testimony, nor is it essential that the accused should have that actual or positive knowledge which one acquires from personal observation of the fact, but the guilty knowledge will be implied if the circumstances are such as should have been sufficient to satisfy a man of ordinary intelligence and caution that property was stolen. ’ ’

And in Kelley’s Crim. Law & Prac., Sec. 684, discussing the same subject, it is said:

“In this case, as in larceny, the possession of goods recently stolen, the corpus delicti being proved, tends to establish the guilt of the party having such possession; but the naked possession, unaided by other proofs, is not evidence that he received them, hnowing them to have been stolen. Slight additional evidence or circumstances may be sufficient to show guilty knowledge, as if he had in his possession other stolen goods, or purchased from the same thief other goods known to have been stolen, or received them under circumstances which would induce a man of ordinary observation to believe they had been stolen, or concealed them. ’ ’

It appears that appellant was a merchant tailor and it is presumable knew the value of clothing. In explanation of the incriminating fact of possession of the property recently stolen, he testified that he bought the coat described in the information, worth $87.50', for twenty-five dollars, and from a man with whom he had only the slightest acquaintance. The purchase was not made in the usual course of business, but by this stranger coming into appellant’s store with the garments on his arm; and this, notwithstanding the fact that appellant knew that the person from whom he purchased the four coats was stopping at the hotel directly across the street from appellant’s store. Upon appellant’s advice his son bought a pawn ticket for one dollar from the same man, entitling him to redeem fo.r thirty dollars a fur-lined coat worth $125, without» first going to the pawnshop to examine the coat or to see if such garment was in existence. "When the son presented this ticket at the pawnshop, in the presence of a detective, on December 12, 1910, the latter went to appellant’s store and asked appellant about the ticket. Appellant answered that he had gotten it two weeks before from a man named King supposed to be stopping at the Laclede Hotel. He was further asked if he had any other such tickets or fur-lined coats and answered that he had not, although he admitted at the trial that he then had in his possession three of the coats missed from the Grand Leader stock and received from the same man who had sold his son the pawn ticket. Appellant also then knew, according to his testimony, that he had purchased from the same man the coat sold to Fischer, but which was not found until about two weeks thereafter. On the date last named, December 28, 1910, the coat described in the information was found in another pawnshop. Appellant first said he could not recall having sold the coat to Fischer, though he afterwards admitted that he had, and again denied having any other fur coats, although he must have known of the three coats received from the same person, which he had removed from the store to his home and which were then in his possession.

These facts and circumstances, although contradicted in part by appellant’s testimony, we think warranted the jury in finding that appellant had knowledge that the coat described in the information was stolen, when he received it.

In appellant’s brief much stress is laid upon the testimony tending to prove that, after the alleged purchase of the coats from King, he exposed the same for sale, making no attempt to conceal them from the public. It is maintained with much ability that such conduct is inconsistent with knowledge that the goods were stolen. If the property had been of such character as to be readily identified this argument would have much force, but in view of the testimony that “these kinds of coats are manufactured by a large number of concerns in the United States,” that the concerns selling such goods are “numberless,” and that “there are numerous salesmen out selling the goods,” we are not disposed to attach much weight to the fact that defendant kept said goods in bis store until about the time he knew he was under .suspicion.

The point is also made that the testimony was insufficient in that it was not shown that the garments missing from the Grand Leader store were stolen. It was clearly proven that the coats were in the possession of the owner in the Grand Leader store October 11, 1910, and that without the knowledge or consent of the owner they were taken from the store and were found recently thereafter in the possession of others claiming to "own them. That was sufficient proof of the larceny and about the only way in which larceny can be proved unless, as is rarely the case, there is direct proof of the theft.

A thorough consideration of the testimony has satisfied us that the jury was fully warranted in finding that the coat described in the information was stolen as charged, and that appellant had guilty knowledge of the larceny when he received it.

II. Appellant, complains that testimony was admitted over his objection as to the finding'of alleged stolen property belonging to the Grand Leader, at Chiswell’s pawnshop, and with which appellant was in no wise connected.

This reference to the Chisweil pawnshop is doubtless a mistake, for the coat found there is traced directly to appellant’s possession and is the coat upon which the charge is based. But that complaint is equally without substance if we regard it as referring to the coat found in Dunn’s pawnshop and for which appellant’s son presented the pawnticket, for it is shown in evidence that appellant advised his son to purchase that ticket, and when asked about it said that he, appellant, had bought the ticket from King two weeks before. This testimony was competent on the issue of guilty knowledge.

III. It is finally contended, as stated in the motion for a new trial, that “the court erred in failing to instruct upon the admission.of the evidence upon the part of the State, touching other larcenies and the receiving of other stolen property by him than that mentioned in the information. ’ ’

The legal question presented- by this assignment is: "Was an instruction, limiting the purpose for which testimony as to other offenses should be considered, necessary for the information of the jury in giving’ their verdict? In this connection it is well to state the testimony from which the quéstion arises. Nine coats were stolen from the store of the Grand Leader company. Four of these garments were proved to have been in the possession of appellant recently thereafter. The testimony for the State did not disclose whether these coats were the subject of one larceny or whether they were received at one time by appellant and therefore constituted but one offense. As bearing upon the latter offense the State merely proved recent possession of other stolen property and the character of such possession, as circumstances tending to prove that when appellant received the coat he knew it was stolen. It is true that, according to appellant’s testimony, two of the coats Were received at one time and the other two at a different time. But even with this testimony in the record, we are of the opinion that it cannot he successfully maintained that such a question of law was presented thereby as made necessary a cautionary instruction to the jury, as contended by appellant.

What questions are necessary for the information of the jury and upon which a failure to instruct will be a good cause for a new trial, and what are questions upon which an instruction may properly be given but which a failure to give will not entitle the defendant to a new trial unless proper instructions are requested, have not been definitely pointed out by this court. Indeed it might be difficult to. make such a distinction as would be applicable in all cases and inadvisable to attempt it. That such a distinction does exist is made clear in a number of decisions of this court. • These eases are ably reviewed by Ferr.iss, J., in the case of State v. Starr, 244 Mo. 161. From a consideration of these cases we think it may be safely said that instructions presenting the facts constitutive of the offense charged or of any grade thereof shown by the testimony, the punishment authorized to' be inflicted in case of a conviction, instructions upon the presumption of innocence and reasonable doubt, and good character when put in issue by the testimony, and also instructions presenting the law upon each defense interposed by the accused, are necessary for the information of the jury.

In the case of State v. Starr, supra, testimony of the former conviction of the defendant, and also of bad character, was introduced by the State for the purpose of impeachment. It was there held, following the case of State v. Kilgore, 70 Mo. 559, that snch testimony did not present a question of law upon which an instruction was necessary. In the recent case of State v. Rasco, 239 Mo. 535, the defendant was charged with the murder of Oda Hubbell, and testimony was admitted showing the murder of other members of the family at the same time.1' On appeal complaint was made that the court failed to give an instruction to the jury limiting such proof in its relation to the crime charged. It was held that the question raised by such testimony was a collateral matter and that the failure to give an instruction thereon was not error. The question thus decided in the Rasco case is so similar to the question under consideration that we regard that case as authority against appellant’s contention.

In determining the guilt or innocence of the defendant in the case at bar the jury were properly restricted by the instructions to the “personal property mentioned in the information.” That other property, stolen from the same owner, was shown to have been found in appellant’s possession, was concededly competent to prove the defendant’s guilty knowledge. The purpose for which such testimony was admitted, under the decisions of this court, was not a question upon which an instruction was necessary for the information of the jury in giving their verdict, and the failure to give such an instruction was not error.

The record in this ease fails to disclose prejudicial error, and the judgment is accordingly affirmed.

Brown, P. J., and Perriss, J., concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. RICHARD CALLOWAY, Appellant.
    Division Two,
    November 13, 1912.
    TRIAL: Criminal Law: Submitting Case on Evidence in Case Against Another. After the filing of an information charging the accused with passing a forged check for five dollars, payable to Dan Pattison, or order, and signed by John Dumont, a so-called amended information was filed, charging him with passing a check for $5.50, payable to Jack Williams, or bearer, and signed by John Dumont. The accused pleaded not guilty to the first information, but there was no arraignment upon the second. Another person was tried' for passing the check mentioned in the first information, and then by agreement the case against this accused was submitted, on the evidence taken in that case, to the same jury, and he was found guilty. There is no evidence in the record connecting the accused with any kind of offense. Held, reversed and remanded.
    Appeal from Randolph Circuit Court. — Hon. Fred Lamb, Special Judge.
    Reversed and remanded.

      N. T. Gentry, E. O. Doyle and A. C. Gladney for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
   BLAIR, C.

— June 7, 1911, the prosecuting attorney of Randolph county filed an information charging defendant with passing a forged check. The check was alleged to have been for five dollars, payable-to Dan Pattison, or order, and signed by John Dumont. Subsequently a so-called “amended information” was filed whereby defendant was charged with passing a check for $5.50', payable to Jack Williams, dr bearer, and signed by John Dumont.

Arraigned on the first information defendant pleaded not guilty but there was no arraignment on the second information.

It further appears that one Chissell was tried for passing the five-dolla,r check mentioned in the first information and then, by agreement, the case against appellant was submitted, on the evidence taken in Chissell’s case, to the same jury, with the result that a verdict of guilty was returned and, after unavailing motions for new trial and in arrest of judgment, sentence was pronounced.

There is absolutely no evidence in the record 'connecting appellant with any offense of any kind. His name is not mentioned in the evidence by any one in any way, directly or indirectly. In fact there seems to have been no trial of this defendant at all. There was no issue to try, so far as concerns the second information, which was not an amended but an entirely new information relating to a wholly new and distinct offense. There was no evidence offered in any proceeding in which this defendant appeared as defendant, but the' jury in Chissell’s case were permitted, on the evidence in Chissell’s case, which related solely to another and distinct offense, to return a' verdict against defendant.

As it appears in the transcript the second information, .on which it seems the proceedings below were had, is insufficient.

There having been no sufficient charge, no arraignment, no trial and no evidence in any way connecting appellant in any manner with any crime, the .judgment is reversed and the cause remanded.

Hoy, C., concurs.

PER CURIAM.

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

All the judges concur.


author: LAMM, J.

text:
    ADDIE NELSON and DAVE NELSON v. TALITHA JONES, LIZZIE C. CHISM et al., Appellants.
    In Banc,
    November 14, 1912.
    1. SUIT TO QUIET TITLE: When in Equity. Suits to determine and decree title are viewed as of equitable cognizance unless the issues are so framed by the pleadings as to make the proceeding an action at law.
    .2. -: Estoppel: Abandoned. The plaintiff and the three defendants, while they were all minors, as coplaintiffs brought suit against a third party to determine the respective interests of the plaintiffs and said third party in the land, and the decree was that “the plaintiffs are the owners of the property and defendant has no interest therein.” The suit in this case is by one of those plaintiffs against the other three, and defendants pleaded in their answer that by the procurement and acquiescence of plaintiff they were put to such trouble, outlays, and expenses in and about that proceeding as raises an estoppel against plaintiffs’ claim to be sole 'owner, and plaintiff by reply pleaded her minority as • avoiding the estoppel. There was no plea of res adjudicata. An objection to testimony offered to sustain the plea of estoppel was sustained, and defendants’ counsel do not predicate error upon that ruling,, but treat the whole matter as of little or no appellate value. Held, that the issue of estoppel is out of the case.
    3. -: Question of Legitimacy of Innocent Children. Where the right of defendants to share in the land depends upon the existence of a divorce in favor of their deceased father prior to his marriage to their mother, the presence of blameless and innocent children and of a situation made sordid and squalid by ignorance and poverty, bespeaks judicial charity and mercy to the very verge of the law, in order that a just result may be worked out. A child will not be held to be a bastard unless there is no escape from that dire conclusion.
    4. -: -: Marriage: Divorce: Remarriage: Presumptions. When a status is once established it is presumed to continue until the contrary is made manifest by proof. Where a marriage is once shown, the presumption is that its status continues until he who asserts the contrary establishes its discontinuance by divorce, etc. But there are two exceptions to that presumption, namely: in favor of life, liberty, and innocence all things are to be presumed; and, second, a wrong is never to be presumed. The law presumes innocence, not guilt; morality, not immorality; marriage, not concubinage; legitimacy, not bastardy. Accordingly, when the presumption that marriage once established continues to exist is confronted, under proper proof, by presumptions in favor of innocence rather than crime, in favor of morality instead of vice, the former presumption gives way and the latter obtains. So that if Emma and John were married, and afterwards John and Lizzie by virtue of a common law or ceremonial marriage consorted together as husband and wife during Emma’s life, and held themselves out and were recognized as such, in the community and by their kinsfolk, the burden of proof that John and Emma were not divorced (and that consequently the relations between John and Lizzie were meretricious and criminal) is upon the child of John and Emma in a controversy with the children of John and Lizzie over land belonging to John at the time of his death, though it is a negative fact and hard to prove.
    5. -: Divorce: Proof: Negative: Hearsay. Testimony of two or three witnesses living in the community where the parties lived to the effect that they never heard any one speak of a divorce, is not the cogent proof required by the. law to overcome the strong presumption of innocence.
    6. -: -: -: -: Examination of Records. The law does not require a production of certified copies of all the records of the county where the parties resided in order to establish the negative fact that there was no divorce. It may be established by the parol evidence of a qualified person who has diligently examined them. But where those records are in another State the examination should be made by their custodian or one qualified by familiarity with them.
    7. LEGITIMATE CHILDREN: No Divorce Shown: First Wife-Living. Accepting the view that the word “decreed” used in the statute declaring that “the issue of all marriages decreed null in law, or dissolved by divorce, shall be legitimate” is not materially different in meaning from the word “deemed’’ for which it was substituted in 1865, as was held in Green v. Green, 126 Mo. 17, it is held that the children born during the life of Emma of John and Lizzie, who lived and were recognized as husband and wife in the community in which John and Emma formerly lived and were married, both of whom are now dead, were legitimate children of John, without any showing of' a divorce dissolving the marital relation between John and Emma.
    8. --: -: -: Good Faith of Second Wife. In considering the legitimacy of the children regard should be had to the good faith of their mother, who, ignorant, immature and in the midst of a.lowly and primitive environment, while John’s former wife was alive, eloped with him, and for five or six years thereafter, fearlessly and openly among her neighbors and acquaintances, filled the office of wife and mother 'with the man she then took as her husband. 1

      Appeal from Pemiscot Circuit Court. — Eon. Henry C. Riley, Judge.
    Reversed and remanded (with directions).

      Ward é Collins for appellants.
    (1) The court erred in the admissibility and rejection of testimony. Thompson v. Irish, 99 Mo. 160; Coble v. McDaniels, 33 Mo. 363; O’Neil v. Crain, 67 Mo. 250. (2) Regardless of whether or not John Jones was divorced from his first wife, still his marriage to the second wife, whether it be ceremonial or common law; his holding her out as his wife and cohabiting with her as such; his and her recognition of each other as man and wife; that relation continuing until his death, these children being bom of such relation are legitimate under the law and inherited from their father. Sec. 342, R. S-. 1909'; Lincecum v. Lincecum, 3 Mo. 441; Dyer v. Brannock, 66 Mo. 391; Pratt v. Pratt, 5 Mo. App. 539; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 281; Green v. Green, 126 Mo. 17. There was a ceremonial marriage, but whether or not there was a ceremonial marriage, there was beyond question a common law marriage which is good under this statute. Dyer v. Brannock, 66 Mo. 391; Cargile v. Wood, 63 Mo. 501; Bishop v. Investment Co., 229 Mo. 729; Plattner v. Plattner, 116 Mo. App. 405.. (3) “Where parties have cohabited together and held themselves out as man and wife, and there are circumstances from which a present contract may be inferred, the law, out of charity and in favor of innocence and good morals, will presume marriáge. The law in general presumes against vice and in favor of innocence and good morals, and on this ground holds acknowledgment, cohabitation and reputation presumptive evidence of marriage.” Cargile v. Wood, 63 Mo. 501; Ashford v. Insurance Co., 80 Mo. App. 643; Plattner v. Plattner, 116 Mo. App. 412; Johnson v. Johnson, 30 Mo. 90; . “And this presumption cannot be overthrown except by the most cogent proofs.” Plattner v. Plattner, 116 Mo. App. 412. Plaintiff cannot recover in this case regardless of the statute making legitimate these children, because plaintiff failed to show that this marriage to the second wife was not legitimate. The burden of proof was upon the plaintiff, and it was not sufficient to show a former marriage and to show that the first wife was still living, for the presumption is that there was a divorce obtained, and the burden is upon the plaintiff to overcome this presumption. Johnson v. Railroad, 203 Mo. 401; Klein v. Laudman, 29 Mo. 259; Waddingham v. Waddingham, 21 Mo. App. 609; Leech v. Bank, 99 Mo. App. 684; Winter v. Lodge, 96 Mo. App. 17; Maier v. Brock, 222 Mo. 82; Lincecum v. Lrncecum, 3 Mo. 441. Every presumption of law is in favor of their legitimacy. Johnson v. Johnson, 30 Mo. 72; Boyer v. Dively, 58 Mo. 510.

      Arthur L. Oliver for respondents.
    (1) The ruling of the trial court upon the excerpts of testimony contained in appellants’ brief was proper, (a) The testimony of John Jones as to whether he was married to Babe Harrington is clearly competent. Declarations of a deceased member of a family as to family history or pedigree are one of the oldest exceptions to the hearsay rule. 2 Wigmore on Evidence, Sec. 1480; 6 Eney. of Ev., 447; Flora v. Anderson, 75 Féd. 217; Topper v. Perry, 197 Mo. 544; Imboden v. Trust Co., Ill Mo. App. 235. (b) The admission of improper evidence before the court without a jury is harmless where there is sufficient proper evidence on which to base a decision. Young v. Hudson, 99 Mo. 102; Kleiman v. G-eiselmann, 114 Mo. 437; Laumine v. Gehner, 110 Mo. 122; Crook v. Tull, 111 Mo. 283. (c) The testimony of J. M. Ballard was competent. As a licensed attorney in the state of Arkansas, he made an examination of all the records of the circuit and chancery courts in Mississippi county, Arkansas, where Jones and his wife Emma lived. It was shown by him that these .records were voluminous, and he was then asked to show the absence of any record granting a divorce to either of these two lawfully married people. It was competent and proper to show the absence of such an entry in this manner. 2 Wigmore on Evidence, Secs. 1230', 1244; 10 Ency. Ev., 831; Canal Co. v. Kreybill, 17 Colo. App. 26. (2) The three cases cited by appellants deal, as here, with the relative rights of two sets of children by the same father but by different wives. In each case one or both of the parties to the second marriage acted in good faith. In the case at bar the trial court declared, as a matter of law, that if Babe Harrington acted in good faith in marrying John Jones, believing that he had'been divorced, she and her children could inherit, but then found from the evidence that she did not so act, and this court is asked to weigh the testimony and set at naught the rule and precedent which are as old as the appellate courts. Green v. Green, 126 Mo. 17. The other' cases cited by appellants throughout their brief — Dyer v. Brannock; Johnson v. Johnson, Admr.; Buchanan v. Harvey, and Cargile v. Wood decide nothing in point in the case at bar, as they all deal with the rights of heirs by the first marriage under certain cohabital relations, and Indian customs amounting to marital contracts without ceremony. In these cited cases the heirs were not handicapped with parents knowingly committing bigamy and acts of adultery. (3) The court gave defendants the benefit of all presumptions of innocence and legitimacy by its declaration of law numbered 3. To overcome these presumptions the court properly declared, as a matter of law, that “the burden of proof is on plaintiffs to establish, that the minor defendants are bastards and not capable of inheriting from their father, John Jones, and in establishing this fact said plaintiffs must show by the preponderance of the evidence that John Jones and his first wife were never divorced.” Plaintiff met this burden of proof, and the court’s finding of the facts is conclusive upon appellants. Keen v. Keen, 184 Mo. 366 ; Longuemere v. Busby, 56 Mo. 540'; Turner v. Gibbs, 50 Mo. 556; Glade v. Ford, 131 Mo. App. 164; Collard v. Burch, 138 Mo. App. 94. Presumption of innocence and legitimacy, as enunciated in the cases of Platner v. Plainer, Johnson v. Railroad, and Maeir v. Brock, does not apply, where proof positive, as in the case at bar, discloses no divorce annulling the marriage of John Jones and his wife Emma; and where one of the parties of the alleged second marriage had actual knowledge, and the other had at least presumptive knowledge, of the first marital relations still existing. The presumption of a valid second marriage in the case at bar, which the court below required plaintiff to rebut, was overcome by proof of a valid first marriage, by showing that the wife of that marriage lived true to her marital vows, and by proof that the first marriage had not been dissolved by divorce. This in law was sufficient. 8 Ency. Ev., 464; Cole v. Cole, 153 111. 585; Cozier v. Hinchey, 143 Mo. 203; Snuffer v. Korr, 197 Mo. 182. Nor is this evidence weakened by appellants’ insistence that the first wife, after her separation from Jones, later married, because her second marriage occurred after Jones was killed. (4) There was no valid ceremonial or common marriage between John Jones and Babe Harrington. Under Secs. 8280' and 8281, R. S. 1909, certain marriages are declared void. Among those enumerated are marriages between white people and negroes, and where either party contracts marriage while having a former wife or husband living, without being divorced from the former. Under Secs. 4720 and 4722, R. S. 1909, certain marriages are declared bigamous. These four sections now read as they did in 1891, about the time that Jones and Babe Harrington began cohabiting together. Keen v. Keen, 184 Mo. 373; State v. Cooper, 103 Mo. 273; Banks v. Gálbreath, 149' Mo. 529: (5) There was no common law marriage. There was no evidence offered showing that there was ever a marriage contract or agreement of any kind entered into by John Jones and Babe Harrington. No witness tells when or where or how long they agreed to live together, but, on the contrary, all the evidence points strongly, and the court below so found, that the relations between these parties began without the sanction of marriage.
   LAMM, J.

— In November, 1906, plaintiffs sued to try and to determine title to 77.15 acres of land in Pemiscot county, described by metes and bounds in the petition,' and lying on the State line. Prom a judgment for plaintiffs, defendants appeal.

John Jones was the common source of title. His first wife was Emma Perry. By her he had a daughter, Addie, now intermarried with Dave Nelson, her coplaintiff. Some two years after the birth of Addie, John and Emma separated, and Emma (while John was yet alive) married Luther Brown, a minister of the Gospel. Afterward she died. John (it is claimed by defendants and denied by plaintiffs) married Lizzie C. Harrington during the life of his first spouse. Afterwards John was killed. Defendants Talitha, Josie and George Jones are his infant children by her. After John’s death, lizzie O. intermarried with her codefendant William Chism. ' All parties live in Arkansas.

The main issues threshed out below were divorce, marriage and bastardy.

The pleadings, proofs and admissions are such that, unless Addie is estopped to claim an exclusive title, she inherits the land if she be the only legitimate child and sole heir of John Jones. Contra, if the infant defendants are his legitimate children, then Addie inherits only an undivided one-fourth and they the remaining three-fourths. So, if Lizzie C. was lawfully married to John Jones she is endowed. If, however, she was not, then she is not.

, There was another issue, viz.: It is alleged in the answer that Addie and the defendants (as joint plaintiffs) brought a suit against one Briggance (the source or character of Briggance’s title does not appear) to determine title in 1906 to the same land, in the Pemiscot Circuit Court; that such proceeding ripened into a decree vesting’ the title out of Briggance and into them; and that defendants at the instance and by the procurement and asquiescence of plaintiff Addie were put to such efforts, trouble, outlays and expense in and about that proceeding as raised an estoppel, wherefrom they plead estoppel in aid of their title.

By replication Addie admits such Briggance suit, but pleads her minority by way of avoiding the force of the estoppel.

The cause was tried to the court, and though instructions were asked for defendants, yet the nature of the relief soug’ht, together with the issue of estoppel raised by the answer and the form of the judgment, put the case, we think, in equity. We have been inclined to view suits to determine and decree title as of equitable cognizance, except where the issues are so framed by the pleadings as to make the proceeding a law suit. There is nothing in the pleadings in this case showing either party entitled to a jury. In this view of it, we shall review the facts, and determine the case on our own estimate of them, giving to the court below the proper advantage of position in weighing oral testimony.

The facts are these:

Mississippi county, Arkansas, is just across the line from Pemiscot county, Missouri. About 1886 there lived on the North Chickasawba in said Mississippi county John Jones and Emma Perry. About 1886 or 1887 they were married by a justice of the peace. Their families lived not a great way apart and both the Perrys and the Joneses were farmers. After his marriage John cropped in the neighborhood for four or five years. As said, some two years after Addie was born John and Emma separated. There lived not far away one Harrington. Harrington had a daughter, Lizzie O. Emma Jones and Lizzie Harrington were “girls together,” and though-Harrington moved about a, good deal, yet the young women knew each other pretty well. "Whether it was John or Emma at fault in the separation does not appear. The best we can make out is that their ways parted about 1891. They never lived together as husband and wife thereafter, or in any wise recognized any conjugal duty to each other. She returned to her father’s house with her baby, and John raised a crop and stayed in the neighborhood with his acquaintances for a time variously estimated at from -four to eight months, when, to use the phrase of the witnesses, he “ran away” with Lizzie Harrington.

Miss Harrington’s sister “ran away” at the same time with one Reece. They one and all floated in a dug-out or canoe from North Chickasawba to a place or creek called Marked-Tree, there took a train to West Memphis, there crossed the Mississippi river, and went on to Bolivar county in the State of Mississippi. On the way to Bolivar county they stopped at a way station, according to Lizzie’s account, and both ■these run-away couples there hastily married, a man officiating who “looked like” a minister, and there is •faint evidence of a “license.” Reece did not testify and his whereabouts are unknown. Lizzie’s sister .did not testify. She seems to have afterwards married a man named Scallion, bnt whether she is living or dead Lizzie said she did not know. After several months "Jones and she come back to Yarbro, Mississippi county, Arkansas, hard by North Ohickasawba and there, all the testimony shows, they lived together and held each other out as man and wife in the face of all men and to the knowledge of their old acquaintances- and kinsfolk. She was thence forward known as Mrs. Jones. Not far away at the time lived Emma, the first wife, and the testimony tends to show she knew they were consorting publicly together as man and wife and holding themselves out as such. After one or two years they moved a little way north just over the State line into Missouri, about ten miles from Yarbro and North Ohickasawba, and settled on the farm in question, which Jones then bought. "While at Yarbro he took his child, Addie, and kept her in his family. While not quite clear, yet we gather when Jones made that move he took Addie with him and kept her there at his new home with his putative new wife, until he was killed on June 2, 1896. At their new home in Pemiscot county, as in their old in Mississippi county, Arkansas, 'John Jones and Lizzie lived continuously, openly and habitually as man and wife, the neighborhood recognized and treated them as such; and this recognized and reputed relation continued down, as said, to the day of his death. There is no countervailing. testimony on this phase of the case. In the meantime there was born to the twain three children, the infant defendants, and those three, with Addie, supervised and mothered by Lizzie C., made up his household. During all this time, as said, his first wife lived a few miles away in Arkansas. While the testimony on behalf of plaintiffs leaves the matter in doubt, yet it sufficiently appears from other testimony that the first wife intermarried with Luther Brown, a preacher, during the lifetime of John Jones, as said, and had a child by him. Straightway on the death of John Jones the first wife claimed Addie and took her away. There was no record of a divorce by either John or Emma from the other introduced in evidence. The records of Mississippi county, Arkansas, were searched for such record by Mr. Ballard, one of plaintiffs’ attorneys, but he found no such record. Lizzie, testified that before she ran away with Jones, when he asked her to marry him, he told her he had a divorce, that she believed him without making further inquiry, and married him in good faith as a single man. She lived some distance from Osceola, the county seat (thirty miles, with no railroad) and had never been there. We take it the road there at that time lay through swamps and was not an inviting line of travel. She explained her elopement by saying that her father objected to Jones as a suitor for her hand, because he (Jones) was a “widower” and “kind of rough.” On behalf of plaintiffs, the brother of the first wife was allowed to testify over the objections of defendants’ counsel, that Emma Jones was never divorced from John and that John Jones was never divorced from Emma. He testified further that if they had been divorced he would have known of it “by the report.” He was allowed to testify that the community, of North Chickasawba, his home region, would have known of such divorce by “neighborhood rumor, ’ ’ if there had been one; also that once when he called at the house of John Jones in 1895, John and Lizzie “got in a racket” and he heard John say to her they were not married. This she denied. Elsewhere in his testimony he said Jones told him so three' or four times. One Hicks was also allowed to testify, over the objection, that Eeece told him on the return from Bolivar county that “they were not married.”

At the time of the trial the land was not occupied. Most of it was not cleared. The little hit that had been under the plow had again run wild, and we infer the total value was small.

Questions hinging on challenges to some of plaintiffs’ testimony and adverse rulings below are in the case, and if it is necessary to determine those questions the facts ..will appear further along, as well as any other facts vital to the jiistice of the case.

As to the issue of estoppel, it is out of the case on appeal. "When'Mrs. Nelson was on the stand she testified she became of age October 18, 1906. This was after all four children brought a suit through their joint guardian and curator against Briggance to reinvest themselves with title. The Briggance suit was determined on the 8th of August, 1906. The record shows that on that day it was adjudged in that suit that “the plaintiffs” (the four children) “are the owners of the property and the defendants have no interest in the property.” When Mr. Ballard, one of plaintiffs’ counsel in this suit, and plaintiffs’ counsel in the Briggance suit, was on the stand, a question was asked him on cross-.examination intended to elicit facts creating an estoppel. On objection, evidence of that character was ruled out. That ruling was put upon the foot that Addie Nelson was a minor at the time. We do not read the briefs of appellants’ counsel as predicating error of that ruling, or that they claim title through the judgment in the Briggance suit. Indeed, counsel treat the whole matter as of little or no appellate value. There is no plea of res adjudicata in the case and we need not look into that matter or estoppel. Accordingly those questions are put to one side.

A foreword to the opinion may not be amiss, viz: In the presence of blameless and innocent children, and in the presence of a situation made sordid and squalid by ignorance and poverty, all of which appear in the lines and between the lines of this record, the facts (read through judicial blushes) bespeak judicial charity and mercy to the very verge of the law to work ont a just result.

In onr opinion the judgment is wrong and should be reversed. This because:

(a). Of divorce, marriage and bastardy. There is a presumption that when a status is once established it is generally presumed to continue until the contrary is made manifest by the proof. That sensible presumption (subject to exceptions) is of everyday use in the affairs of man, and such presumption is a legal one constantly applied by courts. Under it a status of marriage once shown might be presumed to continue until he who asserts the contrary establishes its discontinuance by divorce. But in all enlightened systems of jurisprudence it has been found necessary to make exceptions to general rules, which by reason of their universality are sometimes found deficient to attain the full ends of justice in a given case. Such exceptions, when well established as grounded on principle, are as potent as the general rule itself. There is a primary maxim of the law that, in favor of life, liberty and innocence, all things are to be presumed. {In favorem vitae, etc.). There is another: A wrong is not to be presumed. There are presumptions springing from the loins of those noble maxims, which are the crowning glory of our law, viz., that the law presumes innocence, not guilt; morality, not immorality; marriage, not concubinage; legitimacy, not bastardy. Accordingly when'the presumption that a marriage once established continues to exist is confronted, under proper proof, by presumptions in favor of innocence rather than crime, in favor of morality instead of vice, the former presumption gives way and the latter obtain. So that the settled law in this jurisdiction is that if A and B are married, and afterward A and C by virtue of a common law or ceremonial marriage consort together as husband and wife during B’s life, under the circumstances disclosed in this recorcl, the burden of proof that A and B were not divorced (and that consequently the relations between A and 0 are meretricious and criminal) is upon the party asserting the fact, though it is a negative fact and hard to prove. On plaintiffs then was the burden to prove the negative fact that there was no divorce between John Jones and Emma Jones. We have been so lately and fully over this matter, speaking through our brother Graves, in the Johnson case, infra, that it would be unseemly .and smacking of vanity in the writer to attempt to further expound the law. [Johnson v. Railways, 203 Mo. l. c. 401, et seq., and cases cited.] That case was followed in the later case of Maier v. Brock, 222 Mo. 74. [Vide, Plattner v. Plattner, 116 Mo. App. l. c. 412; Bishop v. Brittain Inv. Co., 229 Mo. l. c. 729, et seq.]

That there was at least a common law marriage between Harrington and Jones is sufficiently established. For several years they openly held themselves forth to the world in' the neighborhood of their old acquaintances and kinsfolk by the manner of their daily life, by conduct, demeanor and habit as man, and wife. They assumed that mutual relation apparently in good faith. The community accepted it. Children were born to them. They established a home to which Jones took his child by his first wife and reared her. They seem to have been treated as husband and wife by the relatives of both women. It is unthinkable that in a Christian community however primitive,, the first wife and her relatives would have permitted Addie to remain in the Jones household if they thought bim hatching a brood of bastards in a wanton nest. Did they knowingly subject her to the domination and teaching of an immoral woman? On what decent theory did the first Mrs. Jones remarry except on the assumption she was divorced? The main witness for plaintiffs, the brother of the first Mrs. Jones, puts himself in the attitude of eating salt at Jones’s table in a. house desecrated and dishonored hy flaunted lust, if his theory as a witness he accepted. .

This court has put itself on record as in favor of stringent proof of common law marriages. [Bishop v. Brittain Inv. Co., supra.] We think the proof in this case meets the rigid and wholesome requirement of that ease. It comes within the facts and doctrine of a line of Missouri cases cited in appellants’ brief. (q. v.).

Deeming a common law marriage established, plaintiffs did not successfully carry the burden of showing no divorce. Two or three witnesses who knew the parties spoke of never hearing any one speak of a divorce. They were allowed to tell there was no neighborhood rumor of one. But that character of proof, if of any value at all, is not the cogent proof .required by the law to overcome the strong presumption of-innocence.

Mr. Ballard, as said, one of plaintiffs’ attorneys, described himself on the witness stand as judge of the county court, justice of the peace and notary public in Pemiscot county. Assuming he has the astuteness and learning appurtenant and appertaining to that aggregation, of offices, yet we cannot assume that his investigation of the court records of the courts of another State furnishes the best evidence of their contents. He went to Osceola in Mississippi county, Arkansas, a few days before the trial, searched the records there and was allowed to testify that he found no decree of divorce between John Jones and Emma Jones. The law requires the best proof the ease is susceptible of. It does not require impossibilities and therefore did not require the production in our courts of the records of the courts of a sister State. Where there is a mass of records to examine, the law does not require the production of certified copies of all of them to prove the negative fact that a certain decree cannot be found. Such proof may rest in parol ex necessitate rei. But there'should and could have been furnished the testimony of the custodian of those records, or of other persons who qualified as familiar with them and all of them, in order that the negative fact might be clearly shown. Mr. Ballard testified he examined certain books and indexes. How did the trial court know they were all of the minute books, record books and indexes? All the trial court knew in that behalf he knew from what Ballard testified. How could a stranger to the records like Ballard know? As figs do not grow on thorns, neither does certainty grow on’ uncertainty. In Chilton v. Metcalf, 234 Mo. 27, where evidence of the same character was elicited from the clerk of the court himself, comment is made upon the fact that, the clerk’s evidence did not satisfactorily account for all the records.

While creating suspicion and doubt, yet we hold the testimony too loose and insufficient to clearly prove there was no divorce at Osceola. Moreover, why should we assume the doubtful fact that Emma Jones may not have acquired a residence elsewhere than in Mississippi county, where she herself could have procured a divorce?

It is common learning that under the old common law, in aid of legitimacy- of children, if the husband be shown- to have been “within the .four seas” within a stated period, and was capable of begetting issue, the wife’s child was allowed to be .legitimate. That liberal rule bespeaks an ancient and rooted judicial tenderness toward children. Neither in old nor in modern times has it ever been allowed just to hold a child a bastard unless there is no judicial escape from that dire conclusion.

The premises considered, the Scotch form of verdict, “not proved,” must be our judicial finding on the negative issue of no divorce and on the issue of bastardy. .

(b). There is another view of the case equally conclusive, viz.: In our statute of Descents and Distribution is the following: “The issue of all marriages decreed null in law, or dissolved by divorce, shall be legitimate.” [E. S. 1909', Sec. 342.] That statute once read: “. . . and the issue of all marriages deemed null in law or dissolved by divorce shall nevertheless be legitimate.” [E. S. 1825, p. 328, Sec. 8.] For the first time in G. S. 1865, p. 519, Sec. 11, the statute uses the word “decreed” instead of the former word “deemed;” and as there changed it has been handed down as live written law to this very day. When that change in the statute was first brought to the attention of the courts the notion was indulged that probably the change was a clerical error. [Pratt v. Pratt, 5 Mo. App. l. c. 544.] However, in Green v. Green, 126 Mo. 17, it was held that if the change had only appeared in one revision it could justly be held an inadvertence. But since it appeared continuously in subsequent revisions this court would assume it was intentionally used. On that assumption we held the word “decreed,” in a technical sense, is almost meaningless in practical effect — further, that the Legislature did not intend its meaning should be materially different from the word “deemed” in the original act. [P. 24.] Adopting that view of it on the reasoning of the Green case, then we fall bade upon the exposition of the act as it originally read. There is a wealth of such exposition in our reports. The student in jurisprudence curious to follow the stream of law interpretation up to its original source is referred, for the philosophy and application of that statute, to Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 276; Dyer v. Brannock, 66 Mo. l. c. 418, et seq.; Boyer v. Dively, 58 Mo. 510; Green v. Green, supra; Gates v. Seibert, 157 Mo. l. c. 272, et seq.

In the Lincecum case a man had a second wife in Missouri and a first wife in South Carolina. The' children of the second marriage were allowed to share in the estate with those of the first. In the Johnson case there was a common law marriage with an Indian woman, a daughter of Keokuk, and children were born thereof. Afterwards Johnson sent Keokuk’s daughter back to her tribe, thereby exercising a tribal law right so to do. Afterwards, on the eve of his marriage to a white woman, he declared himself a bachelor. After-wards he reared his Indian children as his own, educated them and gave them a place in his social circle. We held them legitimate. In the Buchanan case, Harvey, while residing with á band of the Blackfeet tribe of Indians on the upper Missouri, where under Indian custom polygamy was lawful, married two squaws and died in the Indian country, leaving a daughter by each,Susan and Adeline. In the distribution under, an administration in St. Louis, Susan and Adeline were declared legitimate under the doctrine of the Johnson case. In the Dyer case, Wilson contracted a common law marriage with Jane Collins and from that union sprang a daughter Cynthia; five years afterwards during Jane’s lifetime he married Sarah Ann Adams by whom he had a child who survived its mother and died. Afterwards he sent for Jane Collins and Cynthia, lived with them until his death and treated Cynthia as his daughter. Sarah Ann Adams owned real estate which was inherited at hér death by her child by Wilson. We held that he inherited the property from his child by Sarah Ann Adams, and that the descendants of Cynthia (the. latter marrying one Dyer) were the offspring of a legitimate child of Wilson and were entitled to recover the property in ejectment. In the Green case, William Green married in Ireland, abandoned his wife, was never divorced and during her lifetime married in this country,, reporting himself a single man. The children of the last wife were held legitimate.

In construing that beneficent and remedial statute we ought not to apply the discredited and bitter proverb that the fathers have eaten sour grapes and the children’s teeth are set on edge. That proverb was held unjust by noble authority at a very early day. [Ezek. xvni: 2-3; Jer. xxxii: 29-30.] We are bound to construe the statute so as to advance the interest of innocent children for whose benefit the statute was passed and who, for no fault of their own, up to that time were in hard lines. The plain language of the statute, as illuminated by the construction given it by this court, makes children in the fix of the infant defendants legitimate. We confess to an indisposition to bastardize them. by implication or construction. Says Napton, J., in the Dyer case: “We have no authority, upon grounds of public policy or for the promotion of private morals, to make restrictions or exceptions which the Legislature has not seen proper to make.” [P. 419'.] Attending to that language it must be steadily borne in mind, as said, that the reason of the existence, the essential object, of the law was to help blameless children and spare them penury and infamy. We are not unmindful of the precept that the greatest incitement to guilt is the hope of sinning with impunity, but the force of that statute, as indicated by the above quotation, is not spent on promoting the morals of parents. In the Green case some stress is laid on the good faith of at least one of the parties contracting the second marriage. It may well be that in order to constitute a marriage at all there should be an element of good faith, a bona fide intention to marry, as over against an intention to indulge a mere prank, or mere casual sexual commerce, etc. But even on that view of the law, we think.the good faith of Miss Harrington sufficiently appears in this case. She is not to be judged by dainty speculative refinements. Ignorant, immature and taking color from a lowly and primitive environment, we must allow some value to those factors on the question of good faith. Her faith must he seen through her works. Her actions speak louder than any words in showing her good faith when she lived for half a decade after her elopement, fearlessly and openly among her neighbors and acquaintances filling the office of a wife and a mother with the man she then took as her husband. Those officers, courts and grand juries charged with law enforcement in the region seem to have acquiesced in the status she established for herself until Jones died. Neither they nor her neighbors cast any stones at her. Is that not some little evidence they thought her honest?

The views expressed make appellants’ assignments of error relating to the admission of testimony fill no office worth while.

For the reasons set forth the judgment should be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. Let that be done.

Coming into Banc from Division One on a dissent, the foregoing opinion is adopted by Banc as its opinion.

All the judges concur except Graves and Woodson, JJ.r who dissent.