text:
    JOHN E. BRYAN et ux. v. A. G. McCASKILL, GEORGE A. BURR. et al.; ARCHILUS E. ROBERTSON et ux., Appellants.
    In Banc,
    November 22, 1920.
    1. QUIETING TITLE: Controversy Between Defendants. Section 2535, Revised Statutes 1909, authorizes any two defendants, brought in by plaintiff in a suit to ascertain and determine title to land, to make up an issue with each other and to try it as adversary parties and secure its determination by the court, although, before entry of judgment, plaintiff disclaims title and leaves only the defendants as parties.
    2. -: Dormer Judgment for Plaintiff: Effect of Reversal Upon Defendants. Where plaintiffs obtained judgment against two defendants in a suit to quiet title, and on appeal it was ruled that the plaintiffs’ title was invalid for any purpose against either or both defendants, and the judgment was reversed and the cause remanded with directions to grant defendants a new trial, there was no adjudication of the rights of defendants as against each other.
    3. -: Title Subject to Trust: Merger: Sale Under Execution. Where M. was desirous of purchasing timber on land which Davis claimed, and they were advised by counsel that the title was in the county, and it was then agreed between them that M. would advance $1.25 per acre, procure a patent from the county to himself, and convey to Davis, reserving the right to remove the timber within five years, and on February 8th the patent was issued and duly recorded, and on June 8th M. conveyed to Davis, reserving the right to remove the timber within five years, but prior thereto and on April 23rd judgment was obtained in the circuit court against M., on which execution issued nearly three years later and the land was sold, the court, in deciding whether Davis or the purchaser at the execution sale acquired the title, will assume that the legal title alone is involved, for if M. held the title subject to a constructive trust in favor of Davis at the time he conveyed to Davis on June 8th, such trust became merged in the legal title ponveyed to Davis by the deed which executed it.
    " 4. RESULTING TRUST: Consideration. Where Davis claimed to own land worth ten dollars an acre and was sued by another claimant, and losing in the trial court appealed, and while the appeal was pending was advised hy counsel that the title was in the county and thereupon entered into an agreement with M. by . which M. was to advance $1.25 per acre, secure a patent from the county, then convey to Davis, reserving the timber and the right to remove it within five years, and said patent having been issued, the moving cause for its issuance upon the payment of $1.25 per acre being that the county had previously attempted by ineffectual patent to convey to Davis, and when M. had conveyed to Davis, reserving the timber, he dismissed his appeal, having* expended $900 in trying to perfect his title, there was a trust in favor, of Davis, supported by a real money consideration.
    5. -: Oral Declaration: Statute of Frauds: Created by Others: Ownership of Consideration. Although Section 2868, Revised Statutes 1909, declares that, “all declarations or creations of trust or confidence of any lands . . . shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts,” Section 2869 also declares that “when any conveyance shall be made of lands ... by which a trust or confidence may arise or result by implication of law, such trust or confidence shall be of like force as the same would have been if this act had not been made;” and that section recognizes that all trusts are not expressly declared or created by the donors. but that some trusts are created by law in the* interest of equity and good conscience, which recognize the true ownership of land beneath the formal deeds by which the law expresses it. The true pwnership, although not disclosed by the*muniments of title, may be given effect by recognizing the consideration upon which the title rests. In such case the ownership of the land follows the ownership of the consideration, and the grantee is held to be a trustee for that purpose.
    6. -: Statute of Frauds: Exemptions: How Far Applicable. Resulting trusts growing out of interest, legal or equitable, in the consideration paid for the acquisition of the legal title, were not the only ones exempted from the operation of the Statute of Frauds by Section 2869, Revised Statutes 1909. That section applies to all conveyances made under such circumstances that a trust should arise in respect thereto. Included in its exemptions are constructive trusts, arising ex maleficio, enforced on the ground that to apply the statute would make it an instrument of fraud.
    7. -: Deception: Under the Guise of Friendship. Courts of equity do not permit a person to interpose the Statute of Frauds to complete title to property,- procured in the guise of friendship and a good will for another and under a promise to use it in the performance of friendly offices for such other.
    8. -: -: Oral Agreement. Where' M. agreed with Davis to purchase land from the county and then convey it to Davis, reserving the timber thereon for himself, although the agreement was oral, if the consideration above the mere purchase price of $1.25 per acre eminated from 'Dav:s, and it was recognized by both the county court and M. that Davis had a valuable interest therein, and M. conveyed to Davis, after patent issued, by a deed expressing the agreement, it will not be held, in favor of an execution purchaser under a judgment -rendered before M. conveyed to Davis, that the duty of M. to convey depended upon an oral contract made before the title was acquired and was therefore ■ an express trust and void under the Statute of Frauds. But it is held, that a constructive trust in favor of Davis existed from the time M. acquired the title from the county, and as-the purchaser at the execution sale under the judgment rendered against M. before he executed said trust knew all about its existence and was in no sense an innocent purchaser, he did not take the title.
    9. -: How Created: Oral Agreement. An agreement of an agent ' to convey land acquired by him for another does not create a resulting trust, but simply goes to the method by which the trust is to be executed. The refusal of the agent to execute his oral agreement does not destroy the equitable right.

      10. -: Claimants to Land: Pooling Interest: Constructive Trust: Innocent Purchaser. Davis claimed to own land worth ten dollars an acre and M. desired to acquire the timber thereon, and being advised that the title was in the county they pooled their interests and orally agreed that M. should advance $1.25 an acre and acquire a patent from the county and then convey to Davis, reserving the timber and the right to remove it within five years, and M. did advance the money and acquired a patent from the county. Held, that M. took the title subject to a constructive trust in favor of Davis, and a purchaser at an execution sale under a judgment rendered against M. before M. conveyed to Davis, being in no sense an innocent purchaser, but having full knowledge of the existence of the trust in favor of Davis from its inception, took nothing by his sheriff’s deed.
    Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.
    Reversed and remanded (with directions).

      Andrew W. Hunt. for appellants.
    (1) The circuit court erred, after having stated that Robertson and wife had proved the facts pleaded, that such pleading and facts were within the Statute of Frauds (R. S. 1909, sec. 2868), because (a) McKinnies, February 8, 1908, paid the $600 to Stoddard County for its patent out of the proceeds of the timber on the land, which he had bought from Davis, whose title, although but a shadow, he could not dispute, which $600 was had by him through Dunbar, Grant & Wright, for the timber, to whom he had sold it under the contract he had made with Davis, while the action of Bryan and wife v. Gardner and Davis was pending and undetermined in the Stoddard Circuit Court, the last contract (that of February 7, 1908) being but a continuation of the contract of 1906 ; (b) because Davis fully performed his part of the contract by appearing before the Stoddard Circuit Court October 7, 1908, the day prior to the issuance of the patent, and assigning his claim to the land, which, although but a shadow, connected with the county through its grant to Phelan & Hicks in 1869, and McKinnies fully performed his part of the contract by reconveying the land to Davis, June, 8,1908; and (c) because a court of equity will not allow that statute to aid in perpetrating a fraud. R. S. 1909, sec. 2869; Rose v. Bates, 12 Mo. 30; State ex rel. v. Cruzen, 211 S. W. 880; Witte v. Storm, 236 Mo. 470; Leahey v. Witte, 123 Mo. 207; Phillips v. Jackson, 240 Mo. 310; Butler v. Carpenter, 163 Mo. 597; Erwin v. Holderman, 92 Mo. 333; Condit v. Maxwell, 142 Mo. 266; Wilsett v. Wilsey, 141 Mo. 200; Jones v. Howard, 142 Mo. 117; Darling v. Potts, 118 Mo. 506; Grumley v. Webb, 44 Mo. 444. (2) In view of the facts pleaded by Robertson and wife, McKinnies never owned such interest in the land, excepting its timber, as was vendible on execution against him. R. S. 1909, sec. 2192. (3) Nor was the Sibole judgment of April 23, 1908, a lien on other than the timber. R. S. 1909, secs. 2124, 2125. (4) This suit was instituted July 26,1911, and Geo. A. Burr bought the interest in the land under execution sale October 6, 1911, and cannot make it available in this suit. Chilton v. Nickey, 261 Mo. 232; Finley v. Bobb, 144 Mo. 403; Romine v. Haag, 178 S. W. 147; Norcum v. D’Oench, 17 Mo. 98. (5)' The purchase of land of the value of $12,000, at execution sale for $75 connotes fraud; and especially is this true when the sale occurred at 9 o’clock in the forenoon. Mangold v. Bacon, 237 Mo. 496; Shoe Co. v. Wyble, 211 Mo. 675; Stephenso'n v. Kilpatrick, 166 Mo. 262; Stoffel v, Schroeder, 62 Mo. 147; Yail v. Jacobs, 62 Mo. 130; Holdsworth v. Shannon, 113 Mo. 508; Goode v. Comfort, 39 Mo. 313.

      'Henson S Woody for respondents.
    (1) All of the parties to this controversy were parties defendant in the case of Bryan v. McCaskill, 175 S. W. 961. They presented their several titles to the court and the court passed upon them deciding that Burr had the title. That decision is a final determination of the matters in issue here. When the Bryans disclaimed title, the trial court should have rendered judgment in favor of Geo. A. Burr. Bryan v. McCaskill, 175 S. W. 961; Keaton v. Jorndt, 259 Mo. 179; Griffin v. Nichols, 224 Mo. 29Í; Emmert v. Aldridge, 231 Mo. 124; Armor v. Frey, 253 Mo. 447; Stone v. Railroad, 261 Mo. 61; Toler v. Edwards, 249 Mo. 161. (2) Plaintiffs are not entitled to recover on the theory that a trust existed between McKinnies and Davis, and that McKinnies held the title in trust for Davis, for the following reasons: (a) Because the trust sought to be established, if any existed, is an express trust and is void because not manifested or proven by a written instrument,,or instruments. R. S. 1909, sec. 2868; Stevens-v. Fitzpatrick, 218 Mo. 708; Dexter v. McDonald, 196 Mo. 373; Heil v. Heil, 184 Mo. 665; Hunter v. Biggs, 254 Mo. 28; Wolfskin v. Wells, 154 Mo. App. 302; Stevenson v. Haynes, 220 Mo. 199; Patterson v. Patterson, 200 Mo. 335; Hillman v. Allen, 145 Mo. 638; Shelton v. Harrison, 184 MO. App. 417. (b) Because even if it be, as contended, that the trust sought to be established is a constructive trust, still plaintiffs cannot recover for they have failed to prove the same by such clear, strong, unequivocal and positive proof as to leave no doubt in the mind of the chancellor that such a trust was intended by the parties. And this is especially true in view of the fact that no part of the purchase price was paid with the money of Davis,” but was all paid out of the money of McKinnies. Chapin v. Cherry, 243 Mo. 375; Watson v. Payne, 143 Mo. App. 726; Brinkerhoff v. Juden, 255 Mo. 698; Derry v. Fielder, 216 Mo. 176; Curd v. Brown, 148 Mo. 82; Aeby v. - Aeby, 192 S. W. 97; Shelton v. Harrison, 184 Mo. App. 418; Ogdon v. Auer, 184 S. W. 72; Williams v. City of Hayti, 184 S. W. 473; Seaman v. Seaman, 181 S. W. 24; Brooks v. Roberts, 195 S. W. 1021; Dowd v. Bond, 199 S. W. 956; Raymond v. Love, 180 S. W. 1058. (c) Because, so far as this record discloses, Burr, ignorant of any trust, if in fact there was one, paid his money for this land at a public sale and it would be inequitable to inforce said alleged trust against him. Derry v. Fielder, 216 Mo. 176. (d) Upon this record, Burr was a purchaser without notice and he should be protected. Davis, even if he had any rights in this land, equitable or otherwise, permitted McKinnies to remain in possession and hold himself out to the word as the true owner, and the Robert-sons, holding under him, should not now, in view of the fact that Burr was a purchaser without notice, be permitted to recover. Grove v. Robards, 36 Mo. 523; "White v. Storm, 236 Mo. 470; Dexter v. McDonald, 196 Mo. 373. (e) Because the testimony conclusively" shows, and it is conceded by all parties, that Stoddard County owned the land, and when McKinnies purchased from the county, he acquired title both to the land and the timber. If he did agree to convey the land to Davis for the timber, and a trust relation was created between the parties, it was without consideration, voluntary and incomplete, and a court of equity will not aid in its enforcement. Harding-v. Trust Co., 207 S. W. 68; Brannock v. Magoon, 141 Mo. App. 316; Taylor v. Welch, 168 Mo. App. 223; Watson v. Payne, 143 Mo. App. 72. (3) Considering the physical condition of the land at the time, the fact that it had practically no market value without the timber, the fact that the McKinnies title was considered worthless, and the absence of fraud on the part of the purchaser, the price paid at the sale by the sheriff was not so grossly inadequate as to render the sale void on that account." Phillips v. Stewart, 59 Mo. 491; Knoop v. Kelsey, 121 Mo. 646; Kearney v. Bockler, 143 Mo. 60; Briant v. Jackson, 99 Mo. 585; Daugherty v. Gangloff, 239 Mo. 649; Boyd v. Wiley, 124 U. S. 98, 31 L. Ed. 369.
   BROWN, C.

On July 26,1911, Bryan and wife filed their petition in the Stoddard Circuit Court for an adjudication of title,to the north half and southeast quarter of Section 10 in Township 28 of Range 11 in said county, against A. G. McCaskill, Achilus E. Robertson and Florence B. Robertson his wife, George A. Burr, R. E. L. Johnson, Mary E. Holmes, and several others who have disappeared from the record, in which plaintiffs claimed title in fee by the entirety to the 480 acres, and charged that the defendants claimed some title or interest therein. Robertson and wife on September 29, 1911, answered, claiming an estate in fee by the entirety in the north half of the section, and on October 22, 1911, Holmes answered claiming the north half of the southeast quarter in fee simple. Johnson and Burr answered jointly on the same day, claiming a like title in the south half of the said quarter, and Burr answered at the same time claiming the north half of the section by fee simple title. This, according to the testimony of defendant, Burr was a friendly suit.

The cause was tried in said court on December 7, 1911, resulting in a judgment for the plaintiff declaring and quieting his title to the entire tract. From this an appeal was taken by the answering defendants Burr, Johnson and the Robertsons to this court, where the judgment of the Circuit Court was, on March 2, 1915, reversed, and the cause remanded to the Stoddard County Circuit Court “with directions to the trial court to set aside the judgment rendered in favor of plaintiffs, to grant defendants a new trial, and to proceed with the cause thereafter in accordance with the views heretofore expressed and as modified.” [175 S. W. l. c. 966.] The title of defendants was deraigned through a decree of the St. Louis Circuit Court of April 13, 1888,-in the case of Charles P. Chouteau v. Cairo & Fulton Railroad Company, Henry IT. Bedford and others, which the plaintiffs desired an opportunity to' impeach for want of jurisdiction of the subject-matter. This court gave them an opportunity to do so, if they could, in the court to which the cause was remanded. It turned out that the infirmity they suspected did not exist, so that the judgment for appellants stood unaffected in that respect.

Up to this time no issue had been made between the several defendants, but all had apparently joined hands in the circuit court as well as in this court to defeat the plaintiffs.

Upon the return of the case to the Stoddard Circuit Court the Eobertsons filed an amended answer which, after denying the title of plaintiffs, admitting their own claim of title and pleading that they were the owners of the north half of said section in fee and asking the judgment of the court accordingly, proceeded to plead as a special defense that one William D. McKinnies on February 8, 1908, received a patent for said land from Stoddard County upon payment of $1.25 per acre; that Mc-Kinnies was desirous to purchase the timber on the land, while Davis wanted the land, which he claimed to own. They were advised by counsel that the true title to the land was in Stoddard County, and not in Davis, and it was then agreed between them that McKinnies .-would advance the sum of $1.25 per acre and procure therefor a patent from the county to himself, and convey the land to Dams by deed, reserving the right to remove the timber within the period of five years. That on February 8, 1908, McKinnies paid said amount to the county and received the patent, which was duly recorded in the deed records of the county on the 22nd day of the same month, and thereby became seized of the land in trust for the purpose of said agreement, and afterward on June 8, 1908, joining with him his wife, made a deed conveying the same to Davis and reserving the right to remove the timber therefrom within five years, which deed was duly recorded on the 15th day of the same month.

That on April 23, 1908, one Joseph Sibole obtained judgment in the circuit court for said county for $1179.95 against McKinnies, on which an execution was issued on April 12, 1911, and delivered to the sheriff of said county, under which all the right, title and interest of McKinnies was sold by the sheriff at public sale on October 6, 1911, to the defendant Burr, and a sheriff’s deed executed to him therefor for the consideration of $75, the amount of his bid. The answer sets up these facts with much detail,' alleging fraud and conspiracy in the transaction for the purpose of extinguishing the title of Davis, and the Robertsons, who obtained his title by mesne conveyances on July 3, 1909. It charges that the sheriff’s deed constituted a cloud upon the title of said defendants, which it asked the court to remove by its judgment.

To this answer and cross-petition the defendant Burr answered on October 25, 1915, and in March following applied for a change of venue, which was granted to the Circuit Court for Mississippi County. The answer consists of a general denial and prayer for affirmative relief.

The cause was tried in the Mississippi County Circuit Court on February 15, 1917, resulting in a judgment for the defendant Burr, that he was the owner in fee of the north half of said Section 10 and that Robertson and wife had no interest in it. The plaintiff John E. Bryan having died before the trial, the judgment also went against the plaintiff Ida M. Bryan, who had filed a disclaimer of title, as well as against all other parties who had been defendants in the suit, and thereupon Robertson and wife, after motion for a new trial overruled, perfected their appeal to this, court.

In 1906 the Bryans, husband and wife, instituted a similar action against R. F. Gardner and Alfred Davis only, to quiet title to the north half and southeast quarter of Section 10. They both answered, Davis claiming to be owner of the north half of the section and Gardner claiming the southeast quarter. This suit resulted in a judgment for the plaintiffs as prayed. An appeal was was taken by both defendants to this court and a super-'' sedeas bond given. The cause stood upon our docket to October 17, 1910, when the case was called, and the appeal dismissed for failure to comply with the rules of this court.

On June 28, 1916, R. F. Gardner filed his petition in the Stoddard County Circuit Court in two suits, one against M. E. Holmes and William D. McKinnies, who claimed all the north* half of. the southeast quarter ■af said Section 10, and the other against George A. Burr, R. E. L. Johnson and William D. McKinnies, as claimants of the 'south half of said quarter section, ashing an adjudication of the title and interests of the respective parties and a judgment, transferring any legal title the defendant or either of them might have in the premises so claimed to himself. On application of the defendants in each case the venue was changed to the Circuit Court of Mississippi County, where a trial was had, resulting in separate judgments that the legal title to the north half of the quarter section was in defendant Mary E. Holmes, and the legal title to the south half of said quarter section was in defendants Burr and Johnson. From ,these judgments the appellants appealed to this court, where they have been ¿rgued and submitted in connection with this case, which they resemble in most respects, although there are some differences to which we will refer in connection with their consideration.

The land involved in this case was swamp and overflowed lands granted to this State by Act of Congress, September 8,1850, and by the State to Stoddard County and by Stoddard County to Lewis M. Ringer by patent, dated May 1, 1869, and by mesne conveyances thereafter culminated in a deed from Henry M. Bedford and wife to Bryan and wife, the plaintiffs, dated June 1, 1900, and duly recorded September 21, 1900. This is the title under which Bryan claimed in this suit until it was held void bv this court in a former appeal in this case. [Bryan v. McCaskill, 175 S. W. 961.]

The title asserted by the defendants Robertson has its inception in a conveyance of the same land by Stoddar County to the Cairo & Fulton Railroad Company, dated March 11, 1859. The railroad company mortgaged these lands, and they were sold under a decree of foreclosure rendered by the St. Louis Circuit Court, and conveyed by a commissioner appointed by that court to Charles P. Chouteau, the plaintiff in said decree, by deed dated October 2, 1888, and on the 26th of the same month Chouteau conveyed the lands to Stoddard County.

Stoddard County, by patent dated February 8, 1908, conveyed tbe land to W. D. McKinnies, under whom each party to this appeal claims.

The contest on the former appeal was between Bryan and wife, plaintiffs, on the one hand, and Burr and the Robertsons claiming by the same title, on the other hand. The Bryans were eliminated by that judgment and entered a formal disclaimer, and this contest is solely between Burr on the one hand and the Robertsons on the other.

I. No question has been made in this case as to the right of these defendants to proceed with the trial of their own controversy without the presence of the plaintiffs, who, before the entry of the judgment below, disclaimed title and left only the defendants as Parties. Of these only three are left; George E. Burr on one side, and Robertson and wife on the other. It is unnecessary for us to determine which of these, if either, occupies the position of plaintiff or defendant. The statute under which the proceeding was inaugurated (R. S. 1909, sec. 2535) provides that the court “may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefor. ” It is plain that this authorized any two defendants brought in by the plaintiff to make up an issue with each other and to try it as adversary parties and secure its determination by the court. Originally they came to defend themselves against a common enemy. When that enemy surrendered at the last trial they continued the conflict between themselves.

The hone of contention was thrown to them and the stronger might take it. It included whatever title Davis, the grantor of appellants, might have lost hv the judgment in Bryan v. Davis and Gardner, in December, 1906.

What we have said should be confined strictly to the connection in which we have said it. The parties here have voluntarily. assumed the relation which has made them adversaries in this appeal, and in doing so were within their rights and are properly before us. We do not wish to be understood as expressing any opinion as to whether they were or could have been forced into that position by the action of the plaintiffs in bringing their suit; or whether a plaintiff by bringing his suit-under the section cited may make everybody parties and thereby force them to disclose all their differences with each other. Many phases of this question may hereafter come before us, but none of them have' obtruded themselves here.

II. The respondent contends that the questions presented here were decided against these appellants by the previous judgment in this case. [Bryan McCaskill, 175 S. W. 961.] We do not understand that anything was then decided against them. The case came before us upon the appeal of Burr and the Robertsons, respectively respondent and appellants now. The suit of Bryan was against both of them, and the judgment of the trial court was against both. This court passed upon the effect of the title under which the victorious plaintiffs held, and determined it to be invalid for any purpose against either or both the' appellants. Our judgment entered upon motion for rehearing with both Burr and Robertsons before us was as follows: “The.cause is reversed and remanded with directions to the trial court to set aside the judgment rendered in favor of plaintiffs, to grant defendants á new trial, and to proceed with the cause thereafter in accordance with the views heretofore expressed and as modified.” The question then before us was the validity of the title of the plaintiffs, and we held they had no title and reversed the judgment on that ground without reference to the controversy between Burr 'and the Robertsons, leaving it for determination in a new trial. That issue alone is now before us.

III. Respondent claims under a sheriff’s deed, dated October 6, 1911, upon judgment of the Stoddard Circuit Court in favor of one Sibole and against McKinnies, rendered April 23, 1908.

The appellants claim through a quitclaim deed made by McKinnies to Dr. Davis, dated June 8, 1908, and recorded June 15, 1908.

McKinnies is the common source of title, and the question is: Which of these deeds constitutes the better titles as between themselves? Although the contest has been directed principally to the ques-^011 wither or not at the time of the rendition of the judgment through which the respondent claims, McKinnies held the title subject to a trust in favor of Davis, it is evident that such trust, if it existed in fact, would become merged in The legal title conveyed by the deed which executed it. We will, therefore, assume that the legal title alone is involved. With this explanation we will take up the questions relating to the capacity in which McKinnies held the title acquired under his patent from the county, at the time the judgment against him became a lien upon his interest in the land.

The land involved was among the swamp lands granted to the State of Missouri under the Act of Congress of December 28, 1850, and by the State of Missouri' to Stoddard County. The devolution of this title was fully stated by the court in the former appeal, and it is unnecessary to our present purpose to repeat it, except to say it left the county in two chains, one of which began in a conveyance by Alfred Eltzroth, a commissioner appointed by the county court for that purpose, to Lewis M. Ringer, dated May, 1869, and ended in the deed under which the plaintiffs claimed from Bedford and wife' to John E. Bryan and Ida M. Bryan his wife, dated June 11, 1900. The other began with a patent to the Cairo & Fulton Railroad Company, dated March 14, 1869, and, passing through the county to W. D. McKinnies by patent, dated February 8, 1908, went from him to Alfred Davis by deed, dated June 8, 1908, reserving the timber standing on the land to be removed within five years. Also a sheriff’s deed to respondent Burr under execution issued April 12,1911, upon a judgment in favor of Joseph Sibole and against McKinnies, rendered April 23, 1908. This deed recites a levy made on April 22, 1911.

At and before the issue of the patent to McKinnies on February 8, 1908, the county was in the position of having granted this same land to Ringer by patent, dated May 1, 1869, and reacquired it by conveyance from Chouteau, dated October 26, 1888. The title of the county through Chouteau was held by us in the former appeal to be paramount to the title of the Bryans through the patent to Ringer and it is this holding which left the case without plaintiffs by the disclaimer of Mrs. Bryan.

The conveyance to Ringer, a judgment creditor of the county, was made in pursuance of an arrangement called in this record the Phelan-Hieks compromise, from the names of the lawyers employed for that purpose by the Stoddard County Court. It is natural that the county, through its court, should feel reluctant, after having once taken pay for this land from Ringer and other purchasers under his judgment, to sell it again without giving them an opportunity to recoup, and the evidence shows that these purchasers were, so far as might be, given preference in the acquisition of the Chouteau lands. Dr. Davis claimed an interest through the Ringer purchase, the exact nature of which does not clearly appear in this record. In 1906, the Bryans sued Davis, with whom they impleaded Gardner, to quiet their title to this land, which resulted in a judgment for plaintiff, which was, as we have already said, appealed to this court, where it rested until October 17, 1910, when it was dismissed.

We have made this statement of the conditions surrounding this transaction in 1908 that they may be considered in so far as they explain the transaction in which the patent to this land was issued to McKinnies, and from which the appellants now claim that a trust resulted to Davis, their grantor. McKinnies up to that time claimed no interest in the land, nor was he in any way connected with any title growing out of the Phelan-Hicks compromise. He simply had a saw mill, and desired to purchase the timber standing on the land, with sufficient time' in which to remove it, and for that reason approached Davis as the party with whom to deal. He promised Davis, when the first suit was instituted against him by Bryan, to pay the costs and 'expenses of its defense. They consulted lawyers who advised them that the title was still in the county. This necessarily involved the assertion that the Bryans had no title, a conclusion that was subsequently confirmed by this court in the former appeal. It was also held in the former appeal that .Bedford, his grantor, stood in such a relation to the Chouteau suit that his title inured to Chouteau, and through Chouteau to Stoddard County, so that it was not available to invoke the Ringer equity under the compromise as applicant for a patent, so that McKinnies had no ehoicó but to secure Dr. Davis as an instrument to obtain the county’s paramount title for $1.25 per acre, while, according to his own admission appearing in the record, it was worth $10 per acre. This the evidence shows he did. He testifies that he asked no aid from Davis, but simply went to the county court, and,.unaided, secured a patent for the land at that price, thus pulling Davis out of the Bryan case, pending in this court, by the roots. Davis not only disputes this, testifying in detail to his negotiations with McKinnies and his own assistance in securing the patent, but brings numerous witnesses to corroborate his testimony. He says that the interest that he claimed through the Ringer sale had already cost him about $900, and that he personally talked with Judge Harper of the county court about the issue of the patent to McKinnies. He describes in detail the making of the contract in Dr. Hunt’s office on February 7, 1908, by which McKinnies agreed to pay the county $1.25 per acre, taking the patent in his own name and making a conveyance of the land to him (Davis), reserving the timber and five years in which to remove it. Dr. Hunt testified that he was attorney for Davis and Gardner in the suit brought against them by the Bryans in 1906, and McKinnies told him that he was to pay the costs of the suit and to have the timber on the land. That he was present at the interview at his own office on February 7, 1908, and heard the conversation at that time in which McKinnies agreed to secure the patent qnd convey the land to Dr. Davis, reserving the timber with five years for its removal. Gardner, who claimed under the Ringer title the southeast quarter of the same section, was present, and participated in the agreement, which also covered that quarter. Mr. Horace M. Dunbar, who furnished $600 to McKinnies to buy both the Davis and Gardner timber, also participated in the agreement, to which Mr. Gardner also testified. Dr. Hunt, Dr. Davis’s attorney, was present in court at the time the patent to McKinnies was ordered and issued. Judge Harper of the county court testified that he sat with the court when the patent was ordered. That it was a rule that the land should not be sold to any one for $1.25 per acre excepting holders of the Phelan-Hicks title. That he knew of the claim of Gardner and Davis through that title, and that McKinnies said that he was to have the timber on the land and five years in which to remove it. The evidence was . so direct and convincing in this respect that the respondent does not seem to question in his brief that the agreement was made by McKinnies, that it was necessary that he should have an interest through the Phelan-Hicks title in. order to obtain the patent and that the patents to the land in Section 10 were issued to him for the consideration of $1.25 per acre, because of his connection with the claims of Davis and Gardner respectively.

Instead of making a deed to Davis immediately upon receiving the patent, it took some importunity on the part of the latter to obtain the performance of that part of the agreement, but, on June 8, 1908, McKinntes; with his wife, executed a quitclaim deed conveying the land to Davis, reserving the timber, thereon to be removed within five years, which was duly recorded on the 15th day of the month. During this interval and on April 23, 1908; Sibole obtained the judgment under which the respondent purchased on October 6, 1911, and claims title. The question which dominates this case is .whether a trust resulted in favor of Davis from the facts we have stated. The theory of the respondent is, or seems to be, that to create a trust-in such a case it is necessary that the party asserting it should have had an interest in the land or paid the purchase price therefor, and that in this case.neither of those conditions existed. He assumes that one dollar and twenty-five cents per acre constituted the entire consideration for the purchase, and that Davis had no interest whatever which contributed to its acquisition. That while the evidence was to the effect that at the time of the issue of the county patent to McKinnies the land was worth very much more than the price then paid the county, and that the timber alone was sold by him to one' Gant in the same transaction for several times that amount, yet the purchase price for the acquisition of the completed title must be measured by that sum alone. The fact is that a suit was then pending in this court upon the appeal of Davis, in which Bryan was asserting the title held invalid in this case. Upon the issue of this patent he suffered his appeal to be dismissed. He was satisfied with the paramount title received by the patent to Me-Ninnies, and believed that he eonld safely stand by that transaction, and did so. He had expended, as he says, and it is not disputed, about $900 in the acquisition of the title under which he had previously claimed, and this was the real money consideration invested by him in the McNinnies patent.

IV. The respondent, in his presentation of the ease here, . wastes no time in denying the facts as we have stated them, but plants himself upon the theory that the law affords no remedy. He says that the whole mora^ duty of McNinnies was defined by an oral contract, void by the terms of the Statute of Frauds requiring it to be evidenced by writing. He seeks' to confine the interests of all the parties to the six- hundred dollars which he paid the county for patents to four hundred and eighty acres of land claimed by Davis and Gardner, while it. was worth, as he had stated in another suit, five thousand dollars.

The county court is far from being open to the imputation implied in this assertion, even had the PhelanHicks compromise exceeded the powers entrusted to it. The payment for the land by Ringer, though he acquired no title thereby, gave the county the moral right to return, in some form, the amount so received, and this respondent is not in position to question its right to do so by issuing a patent to a claimant under the Ringer purchase at one dollar and twenty-five cents per acre, although the land may have been worth eight times that amount. The question of title was then a live one. Bryan and Davis were then locked in a judical contest over it in this court, and Judge Harper of the Stoddard County Court that issued the patent testified in substance that one of the objects of the court was to have the title of the county judically determined. It is absurd to say that the interest of Davis was valueless, and constituted no part of the consideration, for the evidence shows that, it was that part which was the moving cause of the issue of the patent. Its value was liquidated by the parties themselves so as to represent the value of the land when denuded of the timber, which was the real subject of the transaction. To hold, as respondent contends, that our subsequent decision in this case eliminated the claim of Davis as an element of the consideration for the patent, would be equivalent to holding that a failure of title to., land acquired by quitclaim deed would authorizé the recovery of the consideration.

V. Our Statute of Frauds (Sec. 2869, R. S. 1909) provides: “When any conveyance shall be made of any lands, tenements or hereditaments, by which a trust or confidence may arise or result by implication of law, such trust or confidence shall be of like force as tlle same woald tave been if this act had not been made. ’ ’ This section defines trusts expressly excluded by its terms from the operation of the next preceding section (Sec. 2868) which provides that “all declarations or creations of trust or confidence of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts.” Section 2869 rocognizes that all trusts are not expressly declared or created by the donors, but that some trusts are created by law in the interest of equity and good conscience, which recognizes the true ownership of land beneath the formal deeds by which the law expresses it. It recognizes those interests which result from circumstances undisclosed in the muniments of title by giving effect to the true ownership of the consideration upon which the title rests regardless of the terms of the deed by which it is vested. In such cases the equitable ownership of the land follows the ownership of the consideration, and the grantee is held to be a trustee for that purpose. The extent to which this principle is applied in the creation of a resulting trust is shown in Condit v. Maxwell, 142 Mo. 266. In that case the land situated in Missouri was acquired in a trade and the consideration paid by the conveyance of lands in Illinois, while the conveyance was made to one of the parties interested .in the Illinois land. In that case we held that the title of the Missouri land was charged with a trust in favor of all persons interested at law'or in equity in the Illinois land that constituted the consideration, and an accounting was taken to determine the extent of the interest of one of them under a contract hy which he had been in possession of the Illinois lands with the right to make improvements at the expense of the owner.

Resulting trusts growing • out of interest, either legal or equitable, in the consideration paid for the acquisition of the legal title, were not the only ones exempted from the operation of the Statute of Frauds by Section 2869. It applied to all conveyances made under such circumstances that a trust should arise with respect thereto. This includes constructive trusts, arising eco maleficio, enforced on the ground not only that they are expressly excepted out of the statute, but also that to apply the statute would make it an instrument of fraud. The rule has been frequently applied by this court where the owner of an interest in the equity of redemption employs an agent to purchase at the mortgage sale under an oral agreement that he shall have the benefit of the purchase. [Leahey v. Witte, 123 Mo. 207; Richardson v. Champion, 143 Mo. 538; Phillips v. Jackson, 240 Mo. 310, l. c. .335; State ex rel. Cruzen v. Ellison, 211 S. W. 880.] We have, as is shown in the foregoing cases as well, as in many others they cite," always held that one purchasing for the owner of the equity of redemption under such circumstances acts in a fiduciary capacity, and with respect to property so acquired is' charged as trustee for the one for whose benefit he has assumed and promised to act. The trust in such cases does not result from the payment by the beneficiary of the purchase money, but from the fact that its repudiation would be fraud which the statute is not. designed to protect. To use the words of a distinguished author in defining this distinction: “A constructive trust is one that arises when a person, clothed with some fiduciary character, by fraud or otherwise gains some advantage to himself. Courts construe this to be an advantage for the cestui que trust or a constructive trust.” [1 Perry on Trusts (6 Ed.) sec. 27.]

Constructive trusts are barriers erected by equity against fraud, and are particularly designed to prevent the use of the Statute of Frauds as an instrument of fraud and oppression. This is usually attempted, as in this case, by procuring the title to property in the guise of friendship and good will under promise to use it in the performance of friendly offices and then interposing the Statute of Frauds to complete the title so acquired. Courts of equity do not permit this. They consider the transaction in its entirety. They do not consider the trust a matter lying in contract, but as arising from the nature and circumstances of the act by which the title .is acquired.

The respondent, contends that McKinnies, being the owner of the land through his county patent under an oral agreement to convey it (reserving the timber) to Dr. Davis, the duty to make the conveyance depended upon an oral contract made before the title was acquired and was therefore an express trust, and void under the Statute of Frauds. The same argument would apply with equal force to a ease in which the agent should be given the money by his principal to purchase, land and told to have the title taken to himself and to convey it to the principal on his return, and should promise to do so. The same formula in which we have stated our impression of respondent’s argument would apply in case (he agent should purchase the property and refuse to convey it to his principal. The principal might say: “The Statute of Frauds does not. apply, because the fact that I furnished the money for the purchase of the property raised a resulting trust in me which the court will enforce. ’ ’ The agent might reply, like respondent: “All that is true, but I promised to convey the land to you when I got back, which turned your resulting trust into an express trust.” However illogical this reasoning may be, it correctly paraphrases our understanding of respondent’s argument. Its unsoundness lies in the fact that the agreement of the agent to convey does not create the trust, but simply goes to the method by which it is to be executed. Upon the refusal to execute it the equity still remains. This case affords an excellent illustration of the principle. By agreement these parties pooled their interest in the title they were about to obtain from the county to this land. They liquidated these interests by agreement, so that the interest of one should be measured by the value of the timber, and that of the other by the value of the land without the timber; so that whoever should take the title to the land would take it subject to a constructive trust in favor of the other to that extent. They de-. termined that McKinnies should receive the patent, and immediately upon its issue the trust arose in favor of Davis and remained impressed upon the land, until fully executed four months later by conveyance to Davis of the interest he represented.

As we have already indicated this agreement is proven by evidence so direct and convincing as to remove every shadow of doubt. The respondent in his argument does not attempt to analyze it, or otherwise question its conclusiveness. That the division agreed upon was fair and equitable, and made upon a theory which orginated in the desire of McKinnies to procure the timber is equally evident and that he executed it as made by his deed after waiting until, by prompt action, the Sibole judgment against him could be procured, appears upon the face of the record. That an.agreement existed between Sibole’s attorney and McKinnies that the latter should be notified before steps should be taken to enforce the judgment, appears from the statement of both McKinnies and Burr in their petition in the suit against Sibole we have already mentioned. All these things become suggestive in the light of the fact that. Sibole waited until the lien of his judgment would expire in ten days before taking out execution, and the sale was made about three and one-half years after the issue of the county patent on February 8, 1908, when the timber, which was sold for double the amount of the judgment, had been removed. All these things, with others which appear in the record, are calculated to excite in an open and unbiased mind the suspicion that the Sibole judgment was used, if not obtained, for the purpose of extinguishing the interest of Davis while leaving the interest of McKinnies untouched. That, respondent knew what was to be known with reference to the title of McKinnies is not denied, pie was at torney for McKinnies in the matters connected with the sale of the timber out. of which the money paid the county court was advanced, and during this entire litigation. The deed from his client' to Davis stood upon the record as notice to all the world of the claim of Davis: It is therefore unnecessary to inquire whether the lien of the Sibole judgment of April 23, 1908, would sustain the title of an innocent purchaser at the sheriff’s sale thereunder. Burr was not an innocent purchaser and took nothing as against the equity of Davis, which ripened into this deed, which therefore constitutes the better title.

The judgment of the Mississippi Circuit Court is accordingly reversed and the cause remanded to said court, with directions to enter in proper form its judgment declaring these appellants, Robertson and wife, to be the owners in fee by the entirety of the north half of Section 10, Township 28-, of Range 11, and that this respondent has no right, title nor interest therein.

Ragland and Small, (7(7., concur.

PER CURIAM:

The foregoing opinion of Brown, C., is adopted as the opinion of Court in Banc.

All ot the judges concur. .


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. WILLIE HASCALL, Appellant.
    Division Two,
    December 1, 1920.
    1. INFORMATION: Amendment: Utterance of Forged Instrument. In an information charging defendant with having uttered a forged instrument purporting to have been signed by Mary E. Lynch, it is unnecessary to allege the character of the bank to which the instrument was presented, and therefore an amendment, after the Jury is sworn, by changing the word “institution,” used after the name of the bank, to “corporation,” does not change the nature of the charge, is not misleading, and places no additional burden on the accused.
    2. -: Clerical Error: And for An. The use of the conjunction “and” instead of the article “an” in an information, where clearly a clerical error, is an immaterial variance.
    3. VARIANCE: Instruction: Omission of Word Used in Information. The word “witness,” opposite a name which appeared on the order alleged to have been falsely uttered, if written there by the cashier of the bank to whom defendant presented the order, was no part of the order,- and might have been omitted from the information, but if used therein, its omission from the instruction describing the falsely uttered order was an immaterial variance, and hence not prejudicial.
    4. MOTION FOR NEW TRIAL: Supplementary. A so-called supplemental motion for a new trial, if not filed within four days after the verdict of the jury or the finding of the court, cannot be considered, nor are errors assigned therein preserved for review.
    5. READING FALSE ORDER TO JURY: Omitted Word. Where the word “witness” opposite a name on the falsely uttered order was written there by the cashier of the bank to whom accused uttered the order, a direction by the trial court to the prosecuting attorney to omit the word in reading the order to the jury was not error.
    6. ARRAIGNMENT: After Immaterial Amendment of Information. After the information had been unnecessarily amended by changing the word “institution” to “corporation” after the name of the bank tp which the falsely uttered order was presented, it was not necessary that defendant be re-arraigned.
    7. DEMURRER TO EVIDENCE. The evidence of defendant’s guilt being ample, a demurrer to the evidence cannot he. sustained.

      Appeal from Hannibal Court of Common Pleas. — Hon. Charles T. Hays, Judge.
    Affirmed.
    • E. W. Nelson, B. E. Bigger and Harry Garstarphen for appellant.
    (1) The court erred in granting the State leave to amend the information by interlineation. State v. Schrum, 255 Mo. 273; State v. Henschel, 250 Mo. 263. (2) It is conceded, by reason 'of the amendment, that the- information did not designate whether it was a person, partnership or corporation to whom the instrument was passed, uttered and published. State v. Patterson, 259 Mo. 101. It does not permit of dispute that Sec. 4656, R. S. 1909, under which Haseall is charged, creates two distinct classes of offenses. State v. Burgess, 268 Mo. 407. To complete this offense the instrument must be passed, uttered or published to a person, persons or a corporation and the person or corporation to which passed becomes a material element of the charge and must be set out particularly, both to afford the accused his rights guaranteed under the Constitution, Art. 2, sec. 22, wherein the accused is given the right “to demand the nature of the cah.se of the accusation” and also that the information must be sufficiently definite to bar another prosecution. State v. Murphy, 164 Mo. App. 204; State v. Henschel, 250 Mo. 263; State v. Jackson, 90 Mo. 156; State v.' Pierce, 136 Mo. 34; State v. Samuels, 144 Mo. 68; State v. Meysenburg, 171 Mo. 22. Neither is corporation alleged by the fact that the information contains the words “legally organized and existing under and by virtue of the laws of the State of Missouri, located and doing a general banking business at Hannibal.” State v. Washington, 259 Mo. 335. The accused' was thus forced to trial on an information which became a valid charge, if at all, only after the trial was begun. (3) Stripped of verbiage the allegation states this: “did pass, utter and publish and order,” a conjunctive accusation of uttering and ordering, but no allegation that any particular thing was uttered or ordered. Further in the information is an attempt to allege that an order was forged and money was obtained, but no allegation that accused uttered the order so alleged to be forged. State v. Fairlamb, 121 Mo. 154. This is not a case of the mere misspelling of a word as the omission of the letter “h” in the word “child”: State v. Griffin, 155 S'. W. 432, 249 Mo. 624. If we must assume the information means something else than what it states, then guesses are necessary, and the word “and” may be “any,” “no” “one” or “red.” State v. Campbell, 210 Mo. 202; State v. Clinkenbeard, 135 Mo. App. 189. (4) Instruction 1, on behalf of the State, does not direct the jury to find the order to be as alleged in the information but varies from it, as does the evidence in the case. “Where the matter of a written instrument is introduced into the pleading, so as to imply that a correct recital is intended, very slight discrepancies between the instrument set out and that produced in evidence are fatal.” State v. Smith, 31 Mo. 121; State v. Fay, 65 Mo. 490; State v. Owen, 73 Mo. 440; State v. Chamberlain, 75 Mo. 382-, State v. McNerney, 118 Mo. App. 60; Commonwealth v. Lawless, 101 Mass. 32; Brown v. People, 66 111. 344; Hart v. State, 20 Ohio, 49.; State v. Blanchard, 74’Iowa, 628. “Where the indictment attempts to set forth an instrument or writing according to its tenor, the evidence must conform to the instrument set out, although the instrument is unnecessarily particular.”- 22 Cyc. 464. (5) The instrument as set out in the charge contains the word “witness,” and the instruction mentioned does not require the jury to so find. “When the state charges a violation in a particular way, it must be bound by the position it takes, and is not entitled to a verdict in its favor unless it makes proof of the particular charge which it has made.” State v. Young, 136 Mo. App. 881. (6) The, trial court permitted the State’s Attorney to read in evidence an order different from that defendant was charged with uttering, in that court directed counsel, to omit a part thereof, to-wit, the word ‘£ witness. ’ ’ 1 Wharton ’s Crim. Ev. (10 Ed.) p. 322. (7) The defendant should have been arraigned and given an opportunity to enter his plea after- the amendment of the information, otherwise there was no issue joined, since criminal law does not permit of a sentence by default. Maeder v. State, 11 Mo.- 363; State v. Andrews, 27 Mo. 267; State v. Koerner, 51 Mo. 174.

      Frank W. McAllister, Attorney-General, and Lewis Hord Cook, Assistant Attorney-General, for respondent.
    (1.) The information is drawn under Sec. 4656, B. S. 1909, and'is sufficient in form and substance and follows the language of the statute. State v. Watson, 65 Mo 115; State v. Chissell, 245 Mo. 554; Kelley’s Crim. Law and Procedure, sec. 187. (2) After the reading of the information to the jury, the prosecuting attorney, by leave of court, amended the information by striking out the word, ££institution,” and inserting in lieu thereof the word, ££corporation.” To this appellant objects because the court denied him a continuance on his application. We believe the information valid without the amendment. State v. Pullen, 81 Mo. 387; State v. Flora. 1091 Mo. 295. Ownership of the bank, whether owned by a corporation, a copartnership or an individual, is not an essential element of the charge. The Hannibal Trust Company is the place alleged where the defendant uttered or passed the forged order and has to do only with the venue. Defendant could not possibly have been misled by the use of the word, ££institution,” instead of the amendment, “corporation.” No rights of the defendant could have been violated by the alteration. Section '5115, B. S. 1909, provides that no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereunder be set aside, or in any manner affected, because of any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. It is not necessary to state in the information in any manner the name of the person to whom the forged instrument was uttered and the setting out that the order was passed “to the Hannibal Trust Company, a banking institution” is mere surplusage. State v. Stewart, 61 Iowa, 203. (3) The proof shows that the notation “witness” was written on the order by Mr. Hickman, acting on behalf of the bank when the defendant presented the order at the Hannibal Trust Company. Instruction number one sets out the order in the same manner that it is set out in the information with the exception of the omission of the word, “witness.” The word, “witness,” as used in the information is an immaterial variance from the proof. State v. Estes, 70 Mo. 427. (4) There is an error in the information consisting of the use of the word “and,” instead of “an.” It is quite apparent that the error is a clerical one and did not in any manner “tend to the prejudice of the substantial rights of the defendant upon the merits.” This being true, the error did not render the indictment invalid. Sec. 5115, R. S. 1909; State v. Morehead, 195 S. W. 1043; State v. Dubenick, 237 Mo. 185; State v. Griffin, 249 Mo. 627. (5) Appellant was arraigned and waived the reading of the information and entered his plea of not guilty to the crime charged therein. After the jury was sworn, the prosecuting attorney, by leave of court, amended the information as stated. In his motion for a new trial, appellant objected because he was not arraigned- to the amended information. Under the authority of the cases cited, it is not necessary to set out in the information the corporate existence of the Hannibal Trust Company, Therefore, the information, as it stood before this amendment, is good and by the authQrity of State v. Dorgatz, 244 Mo. 227, no re-arraignment is necessary. State v. Loesch, 180 S. W. 879. (6) The supplemental motion for a new trial was invalid as it was filed ont of time. Sec. 5285, R. S. 1909; State v. Simonsen, 263 Mo. 269.
   WALKER, J.

Appellant was charged by information in the Hannibal Court of Common Pleas with having uttered and published as true a forged instrument with knowledge of the forgery as defined in Section 4656, Revised Statutes 1909, in order to obtain $805 of the. property of Mary E. Lynch, with intent then and there to defraud. Upon a' trial he was convicted and sentenced to two years’ imprisonment in the penitentiary.

For many years prior to the time the offense is alleged to have been committed, October 28, 1918, Mary E. Lynch, a widow, had lived in Ralls County in the immediate neighborhood of the appellant. Sometime during the'latter part of September, 1918, or about one month before the offense is alleged to have been committed, she removed to Frankford in Pike County. She was about 58 years of age, somewhat infirm and feeble in health. Her inability to write rendered it necessary in her correspondence and the transaction of other business, for her to depend upon others.

On the 10th day of October, 1918, a registered letter addressed to the prosecutrix at her former residence in Ralls County came into the possession of the appellant. It contained a check for $805 payable to Mary E. Lynch, Appellant signed for this letter and took possession of same. He then went to the Hannibal Trust Company and deposited the check in the name of Mary E. Lynch, the payee, by Willie Hascall. In so doing he stated to the cashier that he was to have the money, and upon being informed that he must procure written authority therefor he returned later with the following writing:

“October 28, 1918. I give Willie Hascall the right to.use my money in any way he wants to. (Signed) Mary E. Lynch. Grace Fay. Willie Hascall.”

The body of this instrument and the signature of Willie Hascall thereto were stated by the cashier to have been in the handwriting of the appellant.

When appellant brought the instrument to the bank the cashier wrote opposite the name of Grace Pay the word “witness” and endorsed on the back of same “Mary Lynch authority to Willie Hascall.” tJpon the receipt of this instrument the bank, as directed by the appellant, placed the amount of the check to his credit. The prosecutrix denies ever having given the appellant authority to act for her in this behalf or otherwise.

Appellant’s contention that his utterance of the instrument in question was under the authority of the prosecutrix is supported by his testimony and that of the woman Grace Fay alone. He admits that the writing or order purporting to confer this authority was not executed nor had it been seen by the prosecutrix, but was framed and signed by himself and Grace Fay.

There was also testimony that when the prosecutrix resided in appellant’s immediate neighborhood he had signed checks for her and had been accustomed to receive her mail. The jury gave no credence to appellant’s testimony.

The charging part of the information is as follows:

“That Willie Hascall, on the-day of October, A. D. 1918, at the Township of Mason, County of Marion, did then and there unlawfully, feloniously pass, utter and publish as true to the Hannibal Trust Company, a banking corporation legally organized and existing under and by virtue of the laws of the State of Missouri, located and doing a general banking business, at Hannibal, Mason Township, Marion County, Missouri, and order which was falsely forged and counterfeit of the tenor as follows: ‘ October 28, 1918,1 give Willie Hascall the right to use my money any way that he wants to. Mary E. Lynch. Witness: Grace Fay, Willie Hascall.’
“The signature of Mary E. Lynch on the order heretofore mentioned is not her signature and that said Willie Hascall unlawfully and feloniously and knowing the signature to be false and a forgery did then and there utter, pass and publish at the Hannibal Trust Company above mentioned and did then and there unlawfully and feloniously and by means of said false and forged order obtain and get eight hundred and five dollars of the value of eight hundred and five dollars lawful money of the United States then and there being the property of Mary E. Lynch, with the intent then and thereby unlawfully, feloniously and willfully to injure, cheat and defraud, contrary etc.”

I. It is contended that the trial court erred in permitting the prosecuting attorney, after the jury was sworn, to amend the information by striking out'the word “institution” as the same appeared therein as a part of the designation of the character of the Trust Company and the insertion in lieu thereof of the word “corporation.” The averment as to the bank was not essential to charge the crime denounced by the statute. The offense consists, as defined in Section 4656, Revised Statutes 1909, under the facts adduced, in the felonious uttering and publishing as true of the instrument described, with knowledge at the time that the same was false and forged, with intent to cheat and defraud Mary E. Lynch, etc.

The only pertinency of the averment as to the character of the bank would be to show how the falsely uttered instrument could effect a fraud. That such allegation was not necessary is evident from the instrument itself as set forth in the information, which sufficiently discloses its apparent legal efficacy and hence its nature as calculated to defraud. The averment, therefore, as to the bank was extrinsic (People v. Stearns, 21 Wend. (N. Y.) 409) and may be construed as surplusage. [State v. Harris, 209 Mo. 423; State v. Chissell, 245 Mo. 549.] Thus considered, the interlineation in no wise changed the nature of the charge, was not misleading and placed no burden upon the accused other than that' imposed under the information as originally framed. Under such, a state of facts there can be no tenable basis for a claim of prejudice.

We recently held in State v. Feeler, 284 Mo. 673, affirming a like rule announced in State v. Walton. 255 Mo. l. c. 242, that such a change as is here complained of was permissible under our statute regulating amendments to indictments and informations. [Sec. 5061, R. S. 1909.]

Appellant cites in support of his contention our ruling in State v. Henschell, 250 Mo. 263. We there construed an information charging an offense against a corporation, and hence an averment as to its corporate character was necessary. Our ruling in State v. Samuels, 144 Mo. 68, in so far as it requires specific proof of an immaterial allegation, has been overruled by the Chissell case, supra;.

State v. Jackson, 90 Mo. 156, holds to the contrary of appellant’s contention.

In State v. Pierce, 136 Mo. 34, there is no ruling which by implication even can be said to sustain appellant’s contention.

In State v. Patterson, 159 Mo. l. c. 101, the crime was alleged to be the embezzlement of a company’s money and its character, whether incorporated or not,' was an essential averment. Not .so here.

While it is true in a criminal charge that nothing-must be left to intendment or implication, this rule must be construed as having reference to such allegations as are necessary to inform the defendant, of the nature and cause of the accusation against him; and not to extrinsic matter the averment of which is unnecessary and if averred need not, as we said in the Harris and Chissell cases, supra, be proved. Nothing more than this was meant in State v. Meysenburg, 171 Mo. l. c. 22, in which the ruling was in reference to the corporation from which the defendant was alleged to have received a gift or bribe. The materiality of the averment under such a state of facts as to the nature of such person, whether natural or artificial, becomes apparent. That is not the case at bar.

In State v. Washington, 259 Mo. 335, the statute (Sec. 464.3, R. S. 1909) upon which that prosecution was based expressly denounces the offense of forging, etc., certain evidences of debt, purporting to be issued by am incorporated hernia. Thus it will appear that the statute rendered an averment of the character of the bank necessary in a prosecution thereunder. From all of which we hold that appellant’s contention is devoid of merit.

II. It is contended that the use of the word “and” instead of the word “an” in the information was error. This contention is trivial. The error clearly appears to have been clerical. It could not have misled or otherwise prejudiced the rights of the appellant. The statute forbidding a reversal for an immaterial variance (Sec. 5114, R. S. 1909) may with reasonable propriety be applied as a sufficient answer to this contention. We said as much in State v. Witherspoon, 231 Mo. l. c. 717, and cases there cited.

III. Appellant contends that instruction numbered one, which described the falsely uttered order, did not contain the word “witness” opposite the name of Grace Fay as i11 M1ormation. The omitted word was endorsed on the order after it had been received by the cashier of the bank. It was therefore no part of the falsely uttered instrument and it might properly have been omitted from the information as well as the instruction. The alleged variance was, under the statute, not material to the merits of the case and lienee not prejudicial. [State v. Carragin, 210 Mo. l. c. 371; State v. Sharpless, 212 Mo. l. c. 202; State v. Jackson, 221 Mo. l. c. 506; State v. Witherspoon, 231 Mo. 717; State v. Shirley, 233 Mo. l. c. 343; State v. Morehead, 271 Mo. 87.]

IV. The instructions given by the court on its own motion, numerically designated, are assigned as error, instruction numbered one, which we have considered, is urged by the appellant in his brief as being improper. An examination of the others discloses that they are drawn in conformity with approved precedents and we overrule the assignment of error in regard thereto.

V. The complaint that the verdict of the jury was the result of prejudice finds no resting place in the record save in a so-called supplemental motion for a new trial. An attempt, to preserve errors in this manner is not authorized by our procedure. 'The sta+u+e (Sec. 5285, R. S. 1909) requires a motion for a new tidal to be filed within four days after the verdict of the jury or the finding of the court. This we have uniformly held to be mandatory. [State v. Simenson, 263 Mo. l. c. 269; State v. Maddox, 153 Mo. 471.] The supplemental motion for a new trial was not filed until more than thirty days after the return of the verdict. Errors assigned therein are therefore not so preserved as to authorize a review of same. [State v. Brooks, 92 Mo. l. c. 592.]

VI. The prosecuting attorney in reading the falsely uttered order to the jury was directed by the court to omit the word “witness” opposite the name Grace Fav as the same appeared in the information. We have heretofore disposed of this contention adversely to the appellant in holding that the word omitted was no part of the order charged to have been falsely uttered. It was therefore surplus-age and the court did not err in directing that it'be not read. The'technical rule (1 Whar. Cr. Ev. (10 Ed.) p. 322) cited by appellant to sustain his contention is not applicable in this behalf under our liberal procedure, which, as we have shown, has express statutory sanction.

VII. Error is assigned in the court permitting the trial to proceed without the re-arraignment of the appellant after the prosecuting’ attorney had been permitted to substitute the word “corporation” for that of “institution” in the information. We have heretofore incidentally disposed of this complaint in holding that the change or interlineation was immaterial. If of this character, it is idle to contend that a failure to re-arraign appellant was error. Presenting, as the information did, the same 'charge after as before the interlineation was made, ^ and the appellant having prior to the change formally announced ready and thereafter participating in the trial he will not be heard to contend that he had not been arraigned. We so declared in State v. Loesch, 180 S. W. l. c. 879, following State v. O’Kelley, 258 Mo. 356, to which cases the curious may refer for more elaborate reasons as to the conclusion reached. We have no hesitancy in saying, as was said in the O’Kelley case, that this contention, in view of the language and evident purpose of the statute (Sec. 5165, R. S. 1909), is “a bald technicality and without merit.”

VIII. ’ Under no reasonable construction of the testimony can it be held that a demurrer to the testimony should have been given. There was, in our opinion, ample evidence of the appellant’s g-uilt. His testimony to the contrary, supported alone by the witness Grace Fay, was not believed by the jury. They' chose to believe the witnesses for the State. This was clearly within their province; the record disclosing no reason why we should invade it, the judgment is affirmed.

All concur.


author: WILLIAMSON, J.

text:
    THE STATE v. JOE TRACY.
    Division Two,
    December 1, 1920.
    1. SUFFICIENT EVIDENCE: Suspicion. If at the utmost the evidence suffices merely to raise a suspicion that the accused had some guilty connection with the crime, and everything proven might be true and he yet be entirely innocent, a conviction cannot stand. So where the evidence merely shows that a bank had been burglarized; that shortly afterwards defendant and two others were found three-tenths of a mile from the scene of the crime, sitting on the river bank in the darkness, near a skiff containing a quantity of burglar’s tools, gas tanks, gauges and other tools used in melting steel and penetrating steel vaults;, that accused protested when a flashlight was directed at him, leveled a rifle at one of the two men who had unexpectedly come upon them, and immediately thereafter fled; and that accused was sub- • sequently identified as one of the three men, by one of the two who had thus found them and by only one, none of the stolen property having been traced to defendant, the evidence is nol sufficient to support a conviction of the charge of burglary.
    2. WITNESS: Cross-Examination: Impeachment: Former Arrest. Evidence that a witness has been arrested does not tend to impeach his credibility. It is improper conduct for the attorney for the State to ask a witness for defendant whether or not the witness has ever been arrested; and, when objection to the question is sustained, it is still more improper for the attorney to announce his intention of calling another witness to whom he proposes to propound the same question.
    3. INSTRUCTION: Reference to Charge. A causal reference to the charge in the information in an instruction telling the jury that if they believe from the evidence beyond a reasonable doubt that defendant broke into the bank with felonious intent to steal “money, notes, checks, goods, merchandise or other valuable things, as charged in the information,’’ then they should find him guilty, is harmless, the information also having been read to the jury.
    Appeal from Saline Criminal Court. — Hon. John A. Rich, Judge.
    Reversed and remanded.

      W. H. Meschede and Lynch, Kennedy & Gufin for appellant.
    (1) The evidence was insufficient to sustain the verdict. State v. Francis, 98 S. W. 11; State v. Jones, 177 Mo. 665; State v. Gordon, 98 S. W, 662; State v. Prendible, 165 Mo. 350; State v. DeWitt, 190 Mo. 51. The witness Hezeldah Smith was impeached and discredited, and his testimony should not ..be permitted to stand. 'State v. Helton, Í64 S. W. 457; State v. Huff, 161 Mo. 487; People v. Lyons, 51 Mich. 215; State v. Packwood. 26 Mo’. 340; State v. Primm, 98 Mo. 373; State v. Prendible, 165 Mo. 352; State v. Gordon, 98 S. W. 39. (2) The verdict was the result of passion, prejudice or partiality on the part of the jury. State v. Primm, 98 Mo. 372; State v. Packwood, 26 Mo. 340; State v. Burgdorf, 53 Mo. 65; State v. Mansfield, 41 Mo. 470; State v. Danbert, 42 Mo. 238; State v. Jaeger, 66 Mo. 173; State v. Castor, 93 Mo. 242; State v. Prendible, 165 Mo. 353; State v. Webb, 162 S. W: 628. (3) Prejudicial error was committed by the attorney assisting the State in asking Avitnéss Atkinson if he had ever been arrested, and in making the statement before the jury that the same question could be propounded to witness McGrath for the defense, but it could not be shown if the defense objected to it. State v. Webb, 162 S. W. 628. (4) The court erred in admitting evidence about the boat which was found down the river, for the. reason that no connection was shoAvn between it and defendant. State v. Thomas, 99 Mo. 257.

      Frank W. McAllister, Attorney-General, for respondent; Bon G. Garter of counsel.
    (1) The weight of the evidence on the credibility of the witnesses is for the jury, and if there is substantial evidence to sustain the verdict, this court Avill not interfere with, nor disturb it. State v. Reagan, 280. -57; State v. Oertel, 280 Mo. 129; State v. Underwood, 263 Mo. 685; State v. Concelia, 250 Mo. 420; State v. Bowen, 247 Mo. 595; State-v. Reed, 237 Mo. 231. (2) Beyond the peradventnre of a doubt, the defendant is guilty under the facts stated in evidence.
   WILLIAMSON, J.

The defendant, Joe Tracy, having been found guilty of burglary in the second degree and his punishment having been fixed at confinement in the penitentiary for fifteen years, has duly appealed. We adopt the State’s statement of the facts, with slight modifications.

On March 19, 1918, the Miami Savings Bank, a banking corporation in the City of Miami, Saline County, Missouri, was burglarized and some safety deposit boxes were removed from the vault, taken to the rear of the bank building,- pried open, some of the contents of said boxes destroyed, and about six thousand dollars worth of Liberty bonds and about one hundred dollars’ worth of thrift stamps were removed from said safety deposit boxes. Entrance to the bank had been effected by prying open the screen and window on the north side of the bank. The door to the vault of the bank had been penetrated with a fuse, and the fuse had been burned around the combination lock, and, in this way, the big steel dtfor was opened. Inside of said vault was a large safe in which many valuables of the bank were kept. This was not opened, but there had been an attempt made to enter this safe by cutting into it.

On the morning of the 19th of March, Mr. Calvert, sheriff of Carroll County, had been called to the towm of Miami for a woman who had been charged with some offense at Carrollton; he came from Carrollton down to the Carroll County side along about three or four o’clock in the morning to Miami Station, which is just across the river from the town of Miami. He hunted up the ferryman, a Mr. Rader, and requested .him to ferry him across to the Miami landing. A Mr. J. A. Commons was with the sheriff at this time. They went to Mr. Rader’s house and aroused him about three or four o’clock in' the morning and then went down to the edge of the river in order to be ferried across. When they arrived at the usual ferry landing, they found a big automobile standing there by the river bank and in this automobile were three overcoats, a few empty grips and some other things. Mr. Rader, the ferryman, found that his boat had been removed from where he usually chained it to the landing, and it could not be found. He then located a boat belonging to another man and in this took the sheriff, Calvert, and Mr. Commons across the river to the Miami landing.' As soon as they had landed, Mr. Rader fastened the boat to a log at the foot of the-hill. He took a lock out of his pocket and locked his boat to this log.

Then the sheriff, Calvert, and Mr. Commons proceeded on up the hill to the town of Miami and took charge of the woman who was then in the custody of Mr. Hezekiah Smith, a justice of the peace at Miami, who had theretofore arrested this woman under orders from the sheriff of Carroll County. The sheriff, Mr. Commons, Mr. Smith and the woman all went back down to the ferry landing, preparatory to recrossing the river. Commons and Smith were a little distance ahead of Mr. Calvert and the woman, and they arrived at the river’s edge first. When they got down there close to the river’s edge, they saw three men sitting' on a log close to a boat. One of the three men made some inquiry of Smith and Commons as to when they could get-a ferry across the river; Commons had a flash light with him and he turned it on these three parties.

Immediately, one of them jumped up and pulled a gun on Mr. Smith, and one of the others jumped into the boat and attempted to cut this boat loose, so they could get out into the river. The other fellow grabbed hold of Mr. Smith and attempted to push him into the boat with them. They failed to do this, and Smith got away. Commons had already taken to his heels and proceeded back np towards town. Smith and Commons both called for the sheriff, and by the time the sheriff, Commons and Smith could get back down to the river bank, the three men had jumped into another boat and had gone on down 'the Missouri River. In the boat were found an acetylene gas tank, an oxygen- gas tank, and a lot of gauges and tools of the kind that are used in melting steel, penetrating through steel vaults, and other steel material; in other words, a lot of burglar’s tools.

All these parties then proceeded back up town and aroused the people, feeling that some crime had been committed by these men, and as soon as they got back up town, they discovered that the bank had been burglarized.

The boat in which the three parties aforesaid had escaped down the river was found the next day a mile or two from this Miami landing; the nearest railroad station from where this boat was found was Slater, Missouri, on the Chicago & Alton Railroad.

Late that night or early the next morning, about two or three o’clock, three men appeared at the railroad station, this defendant and two others, and one bought a ticket to Kansas City, and the other two men purchased tickets to St. Louis. The automobile, which was standing on the Carroll County side, at the ferry landing, mentioned heretofore, had been stolen from St. Louis, and the acetylene and oxygen gas tanks also came from St. Louis.

Defendant, Tracy, was arrested on Friday or Saturday following the robbing of this bank and was positively identified by Hezekiah Smith as being one of the three men sitting on the log at the foot of the river on the night in question. The ticket agent and his wife, Mr. and Mrs. Butts, at Slater, Missouri, also positively identified the defendant, Tracy, as being the man who appeared at the railroad station in Slater on Tuesday night or Wednesday morning and there had bought a ticket to Kansas City, Missouri. None of the Liberty bonds aforesaid were ever recovered. The defense was an alibi.

It should be noted that defendant denies that he was at Slater. Missouri, at the time and place stated in respondent’s statement of the facts. Some fifteen witnesses testified in support of the alibi set up by defendant, and according to these witnesses defendant was in Kansas City, Missouri, at the time of the commission of the burglary in question. Defendant did not testify in his own behalf.

Numerous assignments of error are urged upon our attention. Such of them as we think it necessary to discuss will be set forth in the opinion proper.

I. Appellant asserts that the evidence was insufficient to support the verdict. Taking the evidence most favorable to the State, it merely shows that very shortly after the burglary was committed, the appellant, in company with two other men, was found three-tenths of a mile from the scene of the crime, sitting on the river bank in the darkness, near a skiff containing a quantity of burglar’s tools and other articles used by such gentry in their nefarious enterprises; that appellant protested when a flashlight was directed at him, leveled a rifle at one of the State’s witnesses, and immediately thereafter fled. One witness fo r the State, and but one, indentified appellant as one of the three men thus 'found. This witness had never seen appellant before and saw him but a very short time 021 this occasion. None of the stolen property was traced to appellant’s possession. Further than as above-stated, he was in no way connected with the burglarious equipment above mentioned.

Is this evidence sufficient to support the conviction? Clearly not. At the utmost, the evidence suffices merely to raise a suspicion — perhaps a strong suspicion — that appellant had some guilty connection with the burglary. But men are not to be convicted upon suspicion, but upon proof. AH that the State proved might be entirely true and the appellant might yet be entirely innocent. There is no need to argue the matter. The facts speak for themselves. We need not refer to the alibi shown by some fifteen witnesses who testified in appellant’s behalf. Even if that evidence were absent, we must nevertheless hold the evidence of the State too weak to support, a conviction. If authority is desired upon so plain a proposition, reference may be had to State v. Scott, 177 Mo. 665; State v. Francis, 199 Mo. 671; State v. Adkins, 222 S. W. 431, and to the authorities cited in those cases.

II. Appellant also assigns as error the conduct of an attorney representing the State in asking a witness in troduced by appellant, whether or not the witness had ever been arrested. Such a question was highly improper, and we should be paying but a poor com- ,. , , ° c. , pliment. to counsel s knowledge ot the law if we were to assume that he did not know the question to be an improper one. Once again we pause to remark that evidence that a witness has been arrested does not tend to impeach his credibility. The learned trial judge very promptly and properly sustained an objection to this question, and counsel for the State thereupon, in the presence of the jury, avowed his intention of calling another'witness to whom he proposed to propound the same question. We do not need to characterize such conduct. We may add, however, that trial courts are endowed with ample power to prevent and to punish such man-oeuvres, and do well when they make judicious use of the power thus vested in them. We assume that this error will not recur upon another trial of this case.

III. Error is also assigned in the admission of testimony concerning a skiff which was found about two miles down the river and on the Saline County side of the river, on the day after the burglary was committed. The evidence for the State tended to show "^at the boat in question was at the place where appellant was found shortly after the burglary was committed; that appellant and his two cornpanions got into it at that place and rowed away; that a few hoars later this boat was found abandoned about two miles down the river, on the Saline County side and in the general direction of Slater, Missouri, where appellant, according to the State’s witnesses, boarded a train on the morning of the day after the commission of the crime in question. This evidence tended to connect appellant with the commissidn of the crime and was properly admitted. •

IV. Appellant also complains of instruction number two given on behalf of the State. In substance, this instruction was that if the jury believed from the evidence beyond a reasonable doubt that appellant broke into the bank in question with the felonious intent to steal “money, notes, checks, goods, merchandise or other valuable things, as charged in the information,” then the jury should find the defendant guilty.

The information, which had been read to the jury, contained the same language. This casual allusion to the charge in the information was harmless. The instruction did not refer the jury to the information ’for any element of the crime, but on the contrary, contained a complete charge concerning the nature of the crime in question and all of its essentials. There is no merit in this assignment. [State v. McLaughlin, 149 Mo. 19, l. c. 33.]

■ What we. have here said concerning instruction number, two applies in large measure to instruction number five, about which appellant also complains on much the same grounds. Appellant also insists that there was no proof of the ownership of the bank building. Should there be another trial of this ease, the ownership of the building will doubtless be somewhat more clearly proven.

The other assignments of error are either so lacking-in merit as to make a discussion of them unnecessary,, or else they relate to matters which are not likely again to arise. It may be that upon a second trial, the State can prove a case against appellant. The facts which we have enumerated would seem to invite further investigation. In view of the present extraordinary prevalence of crime, and the necessity for a rigorous enforcement of the law, we are unwilling to reverse this case outright.

For the reasons stated, this case should be reversed and remanded. It is so ordered.

All concur.


author: WHITE, C. PER CURIAM :

text:
    THE STATE v. L. E. HOLLIS, Appellant.
    Division Two,
    December 1, 1920.
    1. INFORMATION: Killing of Hog: Charged to Dog: Inference Limited to Charge. An information charging that defendant “did feloniously, wilfully and maliciously kill a hog, the property of G. C. Wilson, by then and there allowing and permitting a vicious dog, belonging to said defendant and under his control, to bite, tear, wound and kill said hog,” excludes any human .agency in the killing of the hog except through the instrumentality of the dog, and no inference can be indulged that the hog was killed by any weapon or instrument held in the hands of defendant or any other person.
    2. INSUFFICIENT EVIDENCE: Suspicion: Killing Hog. Evidence sufficient to raise only a suspicion of defendant’s guilt will not support a conviction. Guilt cannot be presumed, but must be proved by evidence. Where defendant was charged with wilfully and maliciously causing his dog to kill his neighbor’s hog, evidence that the neighbor found the hog buried in defendant’s field, dug it up and found a hoi 9 two to three inches in diameter in its side, that wagon tracks T^ere discovered leading from the place where the hog was buried, through defendant’s land, that defendant had borrowed a wagon which he had returned at the time the dead hog was discovered, that there were mud and stains resembling blood on the wagon, that defendant had a vicious dog and that the neighbor’s hogs had been in defendant’s field at former times and had been chased by his dog, is not sufficient to show the defendant’s agency in “wilfully and maliciously” causing the' dog to kill the hog.

      Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.
    Reversed.

      Ward & Reeves for appellant.
    (1) The State in this case relied for conviction solely upon circumstantial evidence. In an attempt to prove that the defendant Idlled the hog, the State offered circumstantial evidence to show the defendant had buried the hog, but there was no circumstance in evidence to’ connect the defendant with the killing of the hog. In other words, the State undertakes,to base one presumption upon another presumption. If the State had proved as a fact that the defendant had buried the hog, then it might be presumed or inferred that he killed it. Before a presumption can be entertained from a proven or asserted fact, such fact must be proved by direct evidence. But the State in this case asked the jury to presume that the defendant buried the hog from a mere circumstance or guess, and then further to presume or infer from that fact that the defendant actually killed the hog. State v. Lackland, 136 Mo. 26; Hayes v. Hogan, 273 Mo, 25; Yarnell v. Railway, 113 Mo. 570; Bigelow v. Railway Co., 48 Mo. App. 367; Click v. Railway, 57 Mo. App. 97; Trotte v. Railway Co., 122 Mo.’ App. 415. The corpus delicti was not proven in this case. To prove the corpus delicti there must be substantial proof that the hog died from a wound or injury unlawfully inflicted by defendant. Both the criminal act and the agency of defendant in the commission of the act must be shown; and neither was established in this case. State v. Bass, 251 Mo. 107; State v. Miller, 234 Mo. 558; State v. Crabtree, 174 Mo. 650; State v. Dickson, 78 Mo. 447. (2) There is absolutely no evidence in this case to sustain the judgment. “At most, the evidence adduced only raised a suspicion against defendant, a-nfl under such circumstances no conviction for crime should be permitted to stand.” And, “It matters not that there was no evidence tending to show that some other person than the defendant committed the crime.” State v. Morney, 196 Mo. 49, 51; State v. Francis, 199 tMo. 671; State v. Young, 237 Mo. 170; State v. Scott, 177 Mo. 665; State v. Woodson, 175 Mo. App. 393.

      Frank W. McAllister, Attorney-General, and J. W. Broaddus, Assistant Attorney-General, for respondent.
    (1) The information is sufficient in form and substance and follows the language of the statute creating ■the offense. Sec. 4627, R. S. 1909; Kelley’s Criminal Law & Practice, p. 660; State v. Woodward, 95 Mo. 129; State v. Hambleton, 22 Mo. 452; State v. Barton, 214 Mo. 318. (2) The corpus delicti was established. State v. Schyhart, 199 S. W. 211. (3) Where there is any substantial evidence tending to establish defendant’s guilt, this court will not interfere, as the weight of the evdence is for the jury. It is only where there is a total failure of evidence or.where it is so weak as to justify the conclusion that the verdict was the result of passion or prejudice, that this court will interfere. State v. Underwood, 263 Mo. 685; State v. Coneelia, 250 Mo. 412. (4) There was substantial evidence tending to show defendant’s guilt. State v. Barton, 214 Mo. 316; State v. Nicholson, 56 Mo. App. 412.
   WHITE, C.

The defendant was tried and convicted in the Circuit Court of Pemiscot County for killing a hog, the property of G. C. Wilson, his punishment assessed at fifty dollars’ fine, and he has appealed from the judgment thereupon rendered. The statute which the appellant was charged with violating, Section 4627, Revised Statutes 1909, declares it a crime punishable by imprisonment in the penitentiary, wilfully, maliciously or cruelly to kill, maim, wound or beat certain animals, including hogs.

In the fall of 1919 the defendant L. E. Hollis, and G-. O. "Wilson, lived on adjoining farms in Pemiscot County. Wilson was the owner of some brood sows; sometime in October or November of-that year he missed one of them, and in a few days found the hog buried in ■the defendant’s field. He dug it up and found that the hog apparently had been, killed; a large hole two or three inches in diameter was in its side near the hind leg. Wagon tracks were discovered leading from the place where the hog was buried, through the defendant’s land and across a bridge near his house. About that time the defendant had borrowed from a neighbor a wagon which he had returned at the time the dead animal was discovered. The wagon was examined by some witnesses, who swore there was mud in it, and stains resembling blood stains. There was some testimony that Wilson’s hogs had been in the defendant’s field at former times and had been chased by the defendant’s dog. The nature of the wound in the hog which probably caused its death was described by several witnesses. One witness described it as a round hole, about two inches across, which had been torn.. The witness stated that he saw no marks on the hog’s ears or hind legs or tail indicating that she had been bitten by a dog, except the round hole in her belly. Another witness in describing the wound also said there was no evidence that the ears or the tail had been chewed by a dog, and he could not tell whether the hole was punched in the sow before or after she died. Another witness was asked if the wound was ragged or jagged, and said no, “it looked to be a round hole,” that he could almost put his two fists in. Another' witness who described the hole in much the same manner said he couldn’t tell whether the wound caused the hog’s death. It was shown that the-'defendant had a dog. The character of the dog is described in this manner, by Wilson:

“Q. I will ask you whether or not Mr. Hollis has a vicious dog about his premises, or did he have about that time? A. Yes sir, he did.” Mr. Wilson further said that the dog had torn np his stock previous to the time when his hog was missing, but gave no .particulars.

The defendant introduced evidence to show that he 'had used the borrowed wagon for another purpose.

I. The information on which the defendant was tried, framed under Section 4627, Revised Statutes 1909, charges that the defendant “did feloniously, wilfully and maliciously kill a hog, the property of G. C. Wilson by then and there allowing and permitting . ^ yici011s dog belonging to said Hollis and under his control to bite, tear, wound and kill said hog, ’ ’ etc. This declaration excludes any human agency in the alleged destruction of the hog except through the in-, strumentality of the dog. No inference can be indulged that the hog was killed by any weapon or instrument held in the hands of the defendant or any other person.

II. Appellant claims that the proof failed to show any agency of the defendant in connection with the death of the hog, and that a case was not made out for the jury.

We have sufficiently set out. above the evidence showing the circumstances which could connect the defendant with the dead animal. The evidence is entirely circumstantial. It may be conceded that the evidence was sufficient to support a finding by the jury that the defendant buried the hog. The wagon tracks which led across his own field and along his own private way to the place where the hog was buried, the apparent blood stains found in the wagon afterwards, the fact that Wilson’s hogs had been in defendant’s field before, are sufficient to warrant an inference to that effect.

But would that be sufficient to show that the defendant killed the hog? True, there was a possible motive in the depredations of Wilson’s hogs. There was an instrument, in the possession of the dog; there was an opportunity. But conceding that the defendant buried the hog, could it be inferred from that circumstance that he “wilfully and maliciously” caused its death? If the dog was of a vicious character, such as the prosecuting witness de'scribed, by mere conclusion, and if it be conceded that the wound on the hog was caused by a-dog’, it remains to show the agency of the defendant in caus-" ing that result. The dog might very well have killed the hog without the defendant’.s knowledge, and without any intention on his part to kill or injure the hog. A crime will not be presumed (Capp v. St. Louis, 251 Mo. l. c. 373), but must be proved by evidence. If the hog was killed on defendant’s premises by his own dog without his agency in setting the dog on, of which there is no evidence direct or circumstantial, no crime was committed under the section of the statute mentioned. The defendant bad sufficient motive and incentive to bury the hog in order to conceal the fact that his dog had killed it. The evidence indicating that the death of the hog was caused by some dog is entirely circumstantial. It could not be inferred from the defendant’s possession of the dog that he wilfully and maliciously set the dog on the hog and produced the effect which resulted. The evidence at most raises only a suspicion of defendant’s guilt and is entirely insufficient to submit to the jury the question of the defendant’s agency in producing the death of the hog. [State v. Adkins, 222 S. W. l. c. 435; Hays v. Hogan, 273 Mo. l. c. 25; Trotter v. Ry. Co., 122 Mo. App. l. c. 415; State v. Nave, 283 Mo. 35; State v. Schyhart, 199 S. W. 205, l. c. 211; State v. Ruckman, 253 Mo. l. c. 499.]

The judgment is reversed and. defendant discharged

Raile'y and Mozely, CC., concur.

PER CURIAM :

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.