author: WALKER, J.

text:
    AUGUST BAADE et al. v. EMMA CRAMER et al., Appellants.
    Division Two,
    June 3, 1919.
    1. NEGOTIABLE INSTRUMENT: Extension: Consideration. Interest notes given to cover the periods of extension, executed before the maturity of the principal note, constitute a sufficient consider- ' ation for the agreement, indorsed on said note, to extend the time of its payment.

      2. -: Prima-Faeie Owner: Purchaser Without Notice: Due Course. The holder of a negotiable note indorsed in blank by the payee is prima-facie the owner, and is presumed to have taken it in good faith, for value, before maturity, without notice; and a bona-fide purchaser before maturity, for value, without knowledge that it bas been paid or of other infirmity in the title of the holder or of his right to dispose of it appearing thereon, takes it burdened with no equities, and is a holder in due course.
    3. -: -: -: Evidence: Fraudulent Transfer. Upon its being,shown that a note had been paid and that the possession and disposal thereof by the apparent holder weré fraudulent, it becomes incumbent upon the purchaser to sustain his prima-facie title by evidence that he in ignorance of its defects obtained the note in good faith, for value, before maturity; and if the testimony to establish these facts is ample and substantial and is not controverted, it becomes conclusive.
    4. -: -: Indorsement in Blank: Proof Aliunde. The rule that while the holder of an undue negotiable promissory note indorsed in blank is prima-facie the owner thereof it devolves upon its purchaser to prove the indorsement by evidence aliunde, was not violated if the indorsement was treated by respondent both in his pleading and during the trial as a conceded fact and was not an issue in the case; and such being the facts, the indorsement will not on appeal for the first time be considered as having been controverted by respondent.
    5. -: -: —-: Neither Pleaded Nor Proven: Presumption In Absence of Reply. If neither the.petition nor the answer put in issue the note’s indorsement or expressly or by implication referred to the indorsement except in so far as defendant’s allegation of ownership can be so construed, the trial of the case without a reply, no objection to its absence being interposed and the consequent presumption being that it was filed and constituted a general denial, does not impair the conclusion that the authenticity of the indorsement in blank was not an issue in the case.
    6. APPELLATE PRACTICE: Facts Conceded At Trial. A review upon appeal will be restricted to questions arising in the trial court which have been properly saved for consideration. A defense not made either by pleading or proof will not be considered.
    7. NEGOTIABLE NOTE: Assignment Before Maturity: Payment: Effect on Deed of Trust. The rule that the payment of a negotiable note extinguishes the deed of trust securing it, and that a failure to enter satisfaction on the record does not keep the deed of trust alive, has no application where an innocent purchaser for value, before maturity, acquires ownership of the note; for the assignment to a purchaser, for value, before maturity, without • knowledge that it has been paid and without any infirmity appearing on its face of the holder’s right to sell it, carries the title to the purchaser, and along with it as an incident thereto the deed of trust, free from all such defenses except such as could be made against the note, and is not affected by subsequent notice of- equities of other parties.
    8. -: Agreement to Extend. Although the maker of a negotiable note did not indorse or authorize the indorsement thereon of a memorandum extending the time of payment, yet if it was made at his solicitation and in accordance with his agreement with the payee, in good faith and based on a sufficient consideration, and stated the conditions of the extension, the agreement constituted a valid and subsisting contract.
    9. -: -: Oral: Independent of Mortgage. Extensions of a negotiable note, absent a memorandum indorsed thereon, can be established by parol testimony; and an agreement to extend the time of payment may be made verbally, and independently of the deed of trust given to secure the note.
    10. -:-: Maturity. The validity of a contract to extend the time of payment of a note, made before maturity, being conceded, every successive taker is bound to take notice of the agreement, and to look, not only to its face, but to its indorsements, for the purpose of ascertaining whether an extension has been made; and if such indorsements reveal that there has been an agreement to extend, the note does not become due at the time mentioned on its face.
    11. -: -: Failure 'to Release Mortgage. Where the purchasers of property knew, or could have known by an examination of the records, of the existence of a deed of trust securing a note which by its extension indorsements had not matured, but failed to have such deed of trust released before they paid the ■ purchase money, depending in the matter upon the assurances of their agent that he would have it released, and such agent sold the note, indorsed in blank, before maturity, for value, without knowledge on the part of the assignee that' it had been paid, such purchasers, and nob the innocent assignee of the note, must bear the. loss.
    12. -: Innocent Parties. Where the cause of the controversy is due to no intentional wrong perpetrated by either party to the suit, but both acted in good faith and gave full value for what they received, the one who placed a third party in a position to perpetrate the fraud must suffer the loss.
    Appeal from St. Louis City Circuit Court. — Hon. Glendy B. Arnold, Judge.
    Reversed and remanded.

      Harry H. Haeussler for appellants.
    (1) The holder of a negotiable not indorsed in blank by the payee is prima-facie the owner of it and he is presumed to hold it in good faith for value before maturity and without notice, and a purchaser from a party so in possession would obtain a good title. Miller v. Peoples Saving Bank, 193 Mo. App. 498; Allen v. Harris, 79 Mo. App. 490. (2) A maker of a note secured by deed of trust who is sui juris may re-issue the paper before or 'after maturity for a valid consideration so as to bind himself and his assigns as effectively as in the first instance. Kelly v. Staed, 136 Mo. 430; Sater v. Hunt, 66 Mo. App. 528; Curry v. Lafon, 133 Mo. App. 180; Devens v. Van Valkenburg, 192 Mo. App. 215. (3) The parties having left the note andAee(i of trust both uncancelled in the possession of a real estate agent whose business it was to negotiate loans and to sell same, clothed the agent with such authority as to bind them if the agent sold and re-issued said note and deed of trust to an innocent purchaser for value. (4) The extension of time of payment of the note secured by deed of trust at the request of the maker and with consent of the holder had the effect of extending- the period of maturity of said note and a purchaser would take as a bona-fide holder for value before maturity. At least he would only take subject to any defense as between maker and payee, and not subject to any defense other than those connected with the note itself and not such as grow out of collateral transactions. Kelly v. Staed-, 136 Mo. 436; Devens v. Van Valkenburg, 192 Mo. App. 215.

      W. F. Heidemam, for respondents.
    (1) Payment of the $1590 note by plaintiffs was a satisfaction of the mortgage securing the note; and failure to enter such satisfaction thereof on the margin of the record o fthe mortgage did not keep the mortgage in existence. Jackson v. Johnson, 248 Mo. 680 ; Hagerman v. Sntton, 91 Mo. 531; McNair v. Picotte, 33 Mo. 57; Land Co. v. Zeitler, 182 Mo. 251; Adams v. Carpenter, 187 Mo. 613; Hancock v. "Whybark, 66 Mo. 672; Baker, v. Halligan, 75 Mo. 435; Strine v. Williams, 159 Mo. 582; Pease v. Pilot Knob Iron Co., 49 Mo. 128; Ward v. Hildebrand, 46 Mo. 284; Kennett v. Plumber, 28 Mo.. 145; Lipscomb v. Talbott, 243 Mo. 31. (2) Extension of time of the payment of a promissory note for a definite period is a new contract. Matthews v., Tbwell, 138 S. W. (Tex.) 169; 20 Cyc. 208. (3) Contracts not to be performed within one year are within the Statute of Frauds. Sec. 2783,'R. S. 1909; Schultz v. Tatum, 35 Mo. App. 136; Donovan v. Brewing Co., 92 Mo. 341; 19 Am. & Eng. Ency. Law (2 Ed.), p. 942; Hain v. Burton, 118 Mo. App. 586; Yanstone v. Hopkins, 49 Mo. App. 391; Browning v. Walbrun, 45 Mo. 477; Cunningham v. Williams, 43 Mo. App. 629; Ivory v. Murphy, 36 Mo. 534; Welsh v. Heim Brew. Co., 47 Mo. App. 608; Black & Snyder v. Crowthfer & Andriano, 74 Mo. App. 480. (4) It devolves upon the holder of a note to prove, by evidence aliunde the indorsements, that the indorsements purporting to be extensions of its payment were made before maturity, by either the maker thereof, his assignee or his duly authorized agent. Nance v. Hayward, 183 Mo. App. 219; McMahon v. Welsh, 132 Mo. App. 599; Hugumin & Co. v. Hinds & Weissgerber, 97 Mo. App. 352. (5) A party acquiring a note through an agent after its maturity, takes it subject to the equities then existing between the parties; and the principal is charged with notice of all the facts made known to the agent in the transaction. Livermore v. Blood, 40 Mo. 48; Kellogg v. Schnaake, 56 Mo. 136; Sec. 10022, R. S. 1909; 4 Am. & Eng. Ency. Law (2 Ed.), p. 306. (6) A party acquiring a promissory note from his own agent, who is negotiating it in breach of faith, or under circumstances amounting to fraud, is charged with notice of such breach or fraud. Sec. 10025, R. S. 1909. (7) Suit to determine title to real estate under Section 2535, Revised Statutes 1909,- is an action at law, and if the findings of the trial court are sustained by substantial evidence, the same are binding on the appellate court. Walker v. Roberts, 204 S. W. 18; Hatton v. St. Louis, 264 Mo. 634; Kansas City v. Smith, 238 Mo. 334; Withers v. Railroad, 226 Mo. 396.
   WALKER, J.

This is a suit to quiet title to certain real estate' in the City of St. Louis, under Section 2535, Revised Statutes 1909. Upon a trial, there was a judgment for the plaintiffs, from which defendants appeal.

■ Henry Krehmeyer and his wife, Minnie, the former now deceased, were on the 27th of May, 1908, the owners in fee of the real estate, consisting of a lot on Lee Avenue, in the City of St. Louis, as tenants by the entirety. On said date Krehmeyer conveyed this lot to F. W. Herbkesmann, in trust for John F. Behrend, to secure a note to the latter for $1500, then made by gram tors to him, due three years after its date, with semiannual interest notes covering the period of the loan. This deed of trust was recorded in the Recorder’s office of the City of St. Louis.

On December 24, 1913, the Krehmeyers, through an agent, one Chas. C. Crone, sold said lot to plaintiffs and conveyed same to them by a deed of general warranty for the sum of $1850. Of this amount, $50 was then paid to Crone by plaintiffs as earnest money. Two days later, December 26, 1913, they gave Crone their check for $800, and their joint note for $1000, secured by a deed of trust on the land. Prior to this transaction one Toenges had become the owner of the $1500 note and deed of trust securing same, made by the Krehmeyers to Behrend. Upon the consummation of the sale of the lot to plaintiffs, Crone notified Toenges and requested him to surrender the $1500 note for payment and the deed of trust securing same. When Toenges complied, Crone gave him plaintiff’s note for $1000 and his personal cheek for the balance due, and a deed of trust securing the payment of the note. Crone thereupon had plaintiffs ’ deed of trust recorded. When Crone gave Toenges the recorded deed of trust and a certificate of title to the property, Toenges noticed that the deed of trust securing the $1500 note had not been released and called Crone’s attention thereto. The latter then placed this memorandum on the certificate of title opposite the entry concerning the deed of trust: “Paid C. C. C.,” and stated to Toenges that the deed of trust had then been released, but he had overlooked marking it off of the certificate. This, as was aftenvards shown, was not true. Crone had theretofore sold to Emma Cramer, one of the defendants herein, a $2000 note secured by a deed of trust purporting to have been executed by one Woerler. Thereafter, on July 25, 1914, Crone called at Emma Cramer’s residence and informed her that he then had two better deeds of trust aggregating $3000, which he would exchange for the $2000 note and deed of trust theretofore sold to her, she to pay him the difference. He showed her the Krehmeyer $1500, deed of trust which had been' paid in full December 26, 1913, by plaintiffs, but which he had retained possession of without having it released, and another deed of trust for $1500, purporting to have been executed by one John Grundo. Emma Cramer accepted these notes and deeds of trust, surrendered to Crone the Woerler $2000 note and deed of trust securing the payment of same, and gave him in addition her check for $1000'.

The principal note, which had been made by the Krehmeyers to Behrend, and indorsed in blank by the latter to Toenges is as follows:

“$1500.00. St. Louis, Mo., May 27,190-8. Three years after date we promise to pay to the order of John F. Behrend fifteen hundred dollars, value received at the office of C. C. Crone, in St. Louis, with interest at the rate of eight per cent per annum from maturity. Henry Krehmeyer. Secured by Deed of Trust. Minnie Krehmeyer.” (Indorsed): “John F. Behrend.”

On the back of same there appeared two extensions of payment in the following words:

‘ ‘ St. Louis, May 27, 1911. Payment of within notes extended for two years from May 27, 1911, provided the four interest notes dated May 27, 1911, each for forty-five dollars executed by Hy. and Minnie Krehmeyer, and payable to the order of James P. Wilton in six, twelve, eighteen and twenty-four months and given for said extension, be promptly paid when due.
“St. Louis, May 27, 1913. Payment of within note extended for three years from May 27, 1913, provided the six interest notes dated May 27, 1913, each for forty-five dollars executed by Minnie Krehmeyer and payable to the order of James P. Wilton in six, twelve, eighteen, twenty-four, thirty and thirty-six months and given for said extension, be promptly paid when due.”

The interest notes given upon the extensions of the payment of the principal note, except as to differences in their dates and times of payment, are as follows:

“$15, St. Louis, Mo., May 27, 1913. TAventy-four months after date I promise to pay to the order of James P. Wilton forty-five dollars, value received at office of C. C. Crone, in St. Louis,-with interest at the rate of eight per cent per annum from maturity. Secured by deed of trust. Minnie Krehmeyer.” Indorsed: “Without Recourse on Me. James P. Wilton.”

August Baade, one of the plaintiffs, testified as follows: That he and his wife bought the property described in their petition from Mrs. Krehmeyer through her agent, C. C. Crone; that a warranty deed was executed to them by Mrs. Krehmeyer, December 25, 1913, in which the deed of trust theretofore executed by her and her husband on May 27, 1908, was not mentioned. That the price paid for said property by them was $1850, made up of $850 in cash and a deed of trust executed by them to Mrs. Krehmeyer at the time of the purchase of the property to secure the payment of a principal note in the sum of $1000; that C. C. Crone, as the agent of Mrs. Krehmeyer in the sale of the property, agreed to release the $1500 deed of trust executed by Mr. and Mrs. Krehmeyer, and to pay off the note then held by Toenges with the $850 in cash paid by plaintiffs to Crone and the $1000 note and deed of trust executed by them; that the first knowledge they had of Crone’s failure to release the $1500 deed of trust was in May, 1915, when various fraudulent transactions .of Crone were brought to light.

Toenges’ testimony in regard thereto is as follows: That he. had been the owner from April, .1913, of the $1500 note executed by Minnie and Henry Krehmeyer, dated May 27,1908; that he surrendered all of the papers pertaining to said loan with the exception of the principal note to C. C. Crone on December 22, 1913, and later on January 22, 1914, surrendered said principal note to C. C. Crone in exchange for the $1000 deed of trust executed by the Baades (the plaintiffs), and $500 in cash. That he was the owner of the $1500 Krehmeyer note on May 27, 1913, when payment of same was extended for a period of three years from May 27, 1913, and that an indorsement to that effect was placed on the principal note and six semi-annual interest notes executed by Minnie Krehmeyer, were delivered to him and he consented to said renewal. That, after said renewal, he collected one interest note, and on January 22, 1914, surrendered the remaining five interest notes with the principal note to C. C. Crone. That when he received the $1000 note of the Baades from Crone, he also received a certificate of title in which the $1500 deed of trust was still shown as unreleased on the record, and upon objection to same by him, and a demand that it be released, Crone indorsed on said certificate of title opposite said memoranda of deed of trust: “Paid C. C. C.”

Mrs. Krehmeyer, one of the original payees in the $1500 note, testified as follows: That she was the widow of Henry Krehmeyer; that they had owned the property described in plaintiffs’ petition and that she was the owner of same on May 27, 1913, and at1 the time of sale to August and Anna Baade, on December 24, 1913. That she and her husband had executed the note for $1500 dated May 27, 1908, and identified their respective signatures to same. That on May 27, 1913, she requested an extension of the time of payment of said $1500 note for a period of three years and executed renewal interest notes for the sum of $45 each and identified as hers the signature to each of same. That she paid said interest notes as they came due every six months. That she did not indorse any extension on the principal note, nor authorize same to be done.

The testimony of Emma Cramer who purchased the $1500 note of the Krehmeyers from Crone, was as follows: That on June 24, 1914, she was the owner of a $2000 note secured by deed -of trust executed by one Woerler; that on July 25, 1915, at the request of C. C. Or one, she exchanged the Woerler note and deed of trust and $1000 in cash for two notes of $1500 each, one executed by John Grundo, and the other by Mrs. Krehmeyer and secured by deeds of trust; that at the time of said purchase C. C. Crone made out a statement of the transaction, which statement witness identified. Witness further stated that at the time, July 25, 1914, she had no knowledge of any payment of the $1500 Krehmeyer nóte, nor did she- have any knowledge of any transaction between Mr. C. C. Crone and Mr. Toenges in relation to same.

I. The extensions of the time of payment of the original note for $1500 made by the Krehmeyers to John F.' Behrend, and by him indorsed in blank to Robert L. Toenges, were made before the maturity of no^e- The giving of thé interest notes to cover the periods of extension constituted a sufficient consideration for the agreement to extend the time of payment. [Johnson v. Grayson, 230 Mo. 380; Nelson v. Brown, 140 Mo. 580; Mer. Ins. Co. v. Hauck, 83 Mo. 21; Stillwell v. Aaron, 69 Mo. 539; Hosea v. Rowley, 57 Mo. 357.] The term of the last extension had not expired when Emma Cramer obtained the note from C. C. Crone. She purchased it for value with no knowledge of .its having been paid,- and was authorized in concluding that Crone was the prima-faeie owner of same, or in the absence of any evidence on the subject, that he held it in good faith for the owner with authority to dispose of it, as indicated by its indorsement in blank and the fact that it was not overdue. This conclusion is supported by the rule, that where a negotiable note is indorsed in blank by the payee, the holder of same is prima-faeie the owner, and is presumed to have taken it in good faith, for value, before maturity, without notice; and by the correlative rule, that a bona-fide purchaser for value with no knowledge of the infirmity of the title of the holder of .the note and all ■ the indicia of ownership and the right to dispose of same appearing thereon, takes it burdened with no equities'and is a holder in due course under the uniform rulings of the courts, and by express statutory declaration, despite the fact 'that it may have been fraudulently obtained or was thus being disposed of. [Sec. 10022, R. S. 1909; Horton v. Bayne, 52 Mo. 531; Corby v. Butler, 55 Mo. 398; Greer v. Tosti, 56 Mo. 307; Bennett v. Torlina, 56 Mo. 399; Merrick v. Phillips, 58 Mo. 436.] Upon its being shoAvn that .the note had been paid and that the possession and disposal of same by Crone was. fraudulent, it became incumbent upon ^Emma Cramer to sustain her prima-faeie title by evidence that in ignorance of its defects she obtained the note in good faith, for value. [Sec. 10029, R. S. 1909; Heim v. Vette, 167 Mo. 389; Famous Shoe Co. v. Crosswhite, 124 Mo. l. c. 39; Fitzgerald v. Barker, 96 Mo. 661; Mayes v. Robinson, 93 Mo. 114; Hamilton v. Marks, 63 Mo. 167; Miller v. Bank, 193 Mo. App. 498.] The testimony introduced by her in this behalf was ample to establish these facts and was not attempted to be controverted. It, therefore, became conclusive.

II. But, it is urged by plaintiffs, that no eAddence aliunde the note was introduced to prove the indorsement. This point is first raised in plaintiffs’ brief. The petition alleged that Emma Cramer was the owner', ]j0j¿er or' COntrol of the note and deed of trust, and that she refused to deliver same to plaintiffs that it might be canceled, and that they had no knowledge of the nature of her claim. In her answer in this behalf, she simply admits ownership and the possession of the note with the indorsements of extension thereon, that she became the owner thereof in due course for the sum of $1500, with the deed of trust securing same, and that she was then the owner, and that the note was due and remained unpaid. There was no reply filed. On the trial, plaintiffs proffered no proof in regard to the indorsement, and defendant, Emma Cramer,- introduced the note with the indorsements thereon, but offered no other evidence in regard thereto. No objection was interposed to this manner of proof, nor was the authenticity of the indorsement otherwise attempted to be questioned. The rule that while the holder of an under-due negotiable promissory note, indorsed in blank, is prima-facie the owner thereof under Section 10004, Revised Statutes 1909, it devolves upon such holder to prove the indorsement of same by evidence aliunde the indorsement (Nance v. Hayward, 183 Mo. App. l. c. 219, and numerous cases there cited), was not violated by the course pursued in this case. This for the reasou that the indorsement was treated by. the plaintiffs both in their pleading and in the course of the trial, as. a conceded fact, and was not in issue in the case (Worrell v. Roberts, 58 Mo. App. 197), and cannot be considered here for the first time as having been controverted.

In Stillwell v. Patton, 108 Mo. l. c. 363, it was contended by appellant that the court erred in not instructing the jury in addition to other formal requirements necessary to a recovery, that they must find that the original payee had indorsed or assigned the note to the plaintiff. It appeared that this fact had not been pleaded and the real issues were, therefore, only to be determined by an examination of the evidence. The court, in discussing the question, said: “There is an abundance of evidence that the payee of the note and ber husband indorsed and delivered the same to Still-well. This is shown by the evidence produced on both sides, and the fact is controverted by no one. It passed as 'a conceded fact in the case, and, hence, no instructions were asked on this subject by either party. The question is evidently made for the first time in this court. As the assignment was duly proved and not questioned on the trial, the omission in the instruction does not constitute reversible error.”

In Morris v. Case, 4 Kan. Ct. App. 691, under á state of facts similar to those at bar, the court held in effect, that the failure ■ by the plaintiff to atempt either by plea or proof to controvert the indorsement may be construed to mean that an absence of indorsement or a failure to establish same was not relied on to sustain the action. The contention, however, may be disposed of under a more general rule of procedure. Not only within the contemplation of the statute (Sec. 2081, R. S. 1999.), but under repeated judicial rulings, is it established that a review upon appeal will be limited to question's arising in the trial court, which have been properly saved for consideration. [In re Birmingham Drain. Dist. v. Railroad, 266 Mo. 60, 178 S. W. 893; In re Aiken, 262 Mo. 403, 171 S. W. 342; Kirksville v. Ferguson, 262 Mo. 661; Ice Co. v. Kuhlmann, 238 Mo. 685.] The application of this rule is appropriate here and constitutes a sufficient basis for a ruling adverse to plaintiffs’ contention.

The trial of the case without a reply, no objection to its absence being interposed, and the consequent presumption that it was filed and constituted a general denial (McMurray v. McMurray, 258 Mo. l. c. 416; Brewster v. Land Imp. Co., 247 Mo. l. c. 226; Bird v. Fox, 193 S. W. [Mo.] 941) does not militate against the correctness of the conclusion that the quantum óf proof necessary to establish the authenticity of the indorsement was in any wise made an issue in the case As stated, neither the petition nor the answer referred expressly or by implication to the indorsement, except so far as defendant Emma Cramer’s allegation of the ownership of the note can be so construed. There was, therefore, nothing in this regard to which the general denial could be made applicable. In short, the authenticity of the indorsement was not in issue.

III. A review of the facts in the cases cited by plaintiffs in support of the contention that the payment of the $1500 note extinguished the deed of trust securing same, and that the failure to enter satisfaction on the record did not keep the deed of trust in ex-istenoe, shows that the rule as announced in these cases has no application where an innocent purchaser for value, before maturity, acquires the ownership of a note secured by deed of trust, as at bar. Upon the making and delivery of the note and the execution of the deed of trust to secure same, the latter became an accessory or incident to the former; or as Lord Mansfield said, in Martin v. Weston, 2 Bur. 1. c. 979, cited with a approval in Lipscomb v., Talbott, 243 Mo. l. c. 31: “A mortgage is a charge upon the land; and whatever would give the money, will carry the estate in the land along with it, to every purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts: it will go to executors. The assignment of the debt, or for-’ giving it, will draw the land after it, as a consequence; nay, it would do it, though the .debt were for given, only by parol; for the right to the land would follow, notwithstanding the Statute of Frauds.”

Under the facts at bar, the general rule thus announced is applicable, that the assignment of a note passes the interest in a deed of trust given to secure the payment of same. While it is true that the security can have no separate existence apart from the debt and expires when the latter is paid, payment is not presumed to have been made where the facts are, as in the instant case, and so far as the innocent holder for value is concerned, upon the transfer to her of the note, the deed of trust passed as an incident thereto, free from all defenses except such as could he made against the note (Morrison v. Roehl, 215 Mo. l. c. 553; Borgess Inv. Co. v. Vette, 142 Mo. l. c. 573; Devens v. Van Valkenburg, 192 Mo. App. 215), and is not affected by subsequent notice of equities or defense of other parties. [Fitzgerald v. Barker, 96 Mo. l. c. 663; Mayes v. Robinson, 93 .Mo. 114; Hagerman v. Sutton, 91 Mo. l. c. 533.]

IV. The contention is made that the extensions in the time of payment of the $1500 note were invalid, because Mrs. Krehmeyer, one of the original makers. testified that she did not indorse or authorize ,, . . , , , „ ,, . . , , , „ the indorsement on such note ot the memoranda of the extensions. She did testify, however, that it was at her and her husband’s solicitation, as original makers, that the times of payment were extended, that the extensions- were granted in accordance with their agreement made with the original payee, and that the memoranda on the note correctly stated the conditions of such extensions. Made in good faith and based, as we have heretofore stated, upon a sufficient consideration this agreement constituted a valid and subsisting contract. Absent the memoranda, the extension-could have been established by parol testimony (Heywood v. Perrin, 10 Pick, 228); and if the agreements to extend had been verbal, they would have constituted an effectual bar to an action on the note, brought within the extended time (Fisher v. Stevens, 143 Mo. 181; Black v. Epstein, 93 Mo'. App. 459). It has been held elsewhere, in harmony with our ruling as to the accessory relation of a deed of trust to the note it is given to secure, that an agreement for an extension of time to pay the note may be made verbally and independently of the mortgage (Condon Natl. Bk. v. Rogers, 60 Ore. 389, 31 Ann. Cas. 101). In view of the fact that the indorsements of the extensions spoke the truth, there is no merit in the contention that they are invalid because not manually made or immediately directed by the makers. To all intents and purposes, they were the acts of the makers as well as of the original payee, and are to be so regarded.

V. It is further contended, somewhat timorously, that the extensions of the time of payment did not defer the maturity of the note, and that it became due ag stated on its face. The validity of the contract to extend being conceded, as it must be in the presence of the facts, every successive taker of the note was bound to take notice of the agreement and was required not only to look to its face for the time pf its maturity, but to the indorsements thereon, to determine whether or not any agreement or extension of time had been made in regard to its payment L Coffin v. Spencer, 39 Fed. 262.] As was said in effect, in Whitehouse Bank v. White, 136 Tenn. 634, 191 S. W. 332, while a note as executed is stipulated to mature on a day fixed and certain, if the maker and the payee agree to an extension of its payment, a new date of maturity is fixed no less certain than the original note. This contention is therefore overruled.

VI. The moving cause of this controversy is not due to an intentional wrong sought to be perpetrated by either of the parties. They dealt in good faith and gave full value for what they received. Under such circumstances, when one of two innocent persons must suffer for the wrongful act of another, he must suffer who placed the party doing the wrong in a position to do it. [Neuhoff v. O’Reilly, 93 Mo. 164.]

The plaintiffs knew, or could have known, by the exercise of that care which should characterize a transaction of this nature, of the existence of the deed of trust securing the note which they paid in effecting the' purchase of the property. Clothed with this knowledge, or with opportunity to obtain same in the fact that the deed ■ of trust was upon record, they were remiss in not securing its release, but with confidence in the integrity of Crone, left the matter to be attended to by him. That he was afforded an opportunity to, and did, betray this trust is due wholly to their omission. Under no authorized construction of the facts can the defendant Emma Cramer be chargeable with any participation in or knowledge of his fraudulent transactions. It, therefore, becomes our duty to reverse and remand this case, that it may be proceeded with in accordance with the views herein expressed. It- is so ordered.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE STATE v. J. R. PARMENTER, Appellant.
    Division Two,
    June 9, 1919.
    1. GENERAL THREAT: Malice Prepense: Remoteness. A statement by defendant three or four hours before a homicide that he was “going to get a dirty s- of a b- tonight,” accompanied by an exhibition of cartridges of the calibre of the revolver subsequently used, although not directed towards any particular person, is admissible as tending to show malice prepense; and though its remoteness may affect its probative force, it does not affect its admissibility.
    2. INSTRUCTION: Police Officer: Self-Defense: Ordering Defendant Off Street. That defendant had been guilty of no conduct authorizing his arrest or being ordered off the street is no defense to the killing of a policeman; and where, by his testimony, defendant shot deceased in self-defense while the latter was making a deadly assault upon him and there was no attempted arrest, no instruction defining the authority of deceased as a police officer or telling the jury that defendant had been guilty of no conduct authorizing his arrest is required. -
    3. -: Self-Defense: Good Reason for Believing. To require a jury to find that defendant “believed and had good reason to believe,” instead of employing the statutory words (Sec. 4451, R. S. 1909) of “reasonable cause to believe and did believe,” that great personal injury at the hands of deceased existed, where the instruction read as a. whole demonstrates that it was not the real but the apparent danger that would justify action, is not error. Under the facts the meaning of the words “reasonable cause” and “good reason" was the same.
    4. -: Credibility of Witnesses. Where defendant’s testimony is directly in conflict with that of the State’s witnesses, an instruction as to the credibility of witnesses is authorized.
    Appeal from Cape Girardeau Circuit Court. — Hon E. M. Bearing, Judge.
    Apbibmbd.

      Edward B. Hays and Mosley & Woody for appellant.
    (1) The court permitted Thompson . to testify over the objection of defendant and without limiting his testimony, to statements alleged to have been made by defendant in the nature of threats some two or three •hours before the tragedy, which statements had no reference to deceased or to any of the officers of the city, or to them as a class. This testimony, if admissible at all, was not admissible as part of the res gestae, but only for the purpose of showing general malice, or the disposition on the part of defendant to do some criminal act. This testimony should have been so limited and the jury should have been instructed that it was admitted for that purpose only. This was not done; therefore its admission was error prejudicial to defendant. State v. Crabtree, 111 Mo. 141; Strange v. State, 42 S. W. (Tex.) 551; Melton v. State, 83 S. W. (Tex.) 822; 'State v. Feeley, 194 Mo. 253; State v. Fletcher, 190 S. W. (Mo.) 320. (2) Deceased was a police officer of the city; as such officer, he ordered defendant off the streets under the penalty of being locked up, or getting hurt, if he did not obey this order. There is no evidence in the record showing, or tending to show, that at any time during the afternoon or evening of the day of the tragedy, defendant had been guilty of any conduct such as would have authorized deceased to arrest him, or which warranted deceased in ordering him off the street. The court should have instructed the jury, as requested by defendant, that deceased had no power or authority to place defendant under arrest or to molest him, unless defendant had been guilty of such conduct as would amount to a violation of the ordinance of said city, or unless deceased had a warrant for the arrest of defendant. State v. Whitley, 183 S. W. (Mo.) 320; R. S. 1909, secs. 9176, 9180; State ex rel. v. Dierker, 101 Mo. App. 643; Ralls Co. v. Stephens, 104 Mo. App. 120. (3) Instruction numbered six is especially erroneous because it requires the jury to find that defendant had good reason to believe, and did believe, that it was necessary to use his pistol on deceased in the way hé did in order to protect himself from great personal injury at thé hands of deceased, before they could acquit him on the ground of self defense. Under the law defendant had the right to act upon a reasonable cause, and was not required to have a good reason to apprehend danger to his person. R. S. 1909, sec. 4451; State v. McKenzie, 177 Mo. 714; State v. Gordon, 191 Mo. 122; Stacev v. Emery, 97 U. S. 642, 24 L. Ed. 1035; Claiborne v. Railroad, 46 W. Va. 363; State v. Grant, 79 Mo. 134. (4) There being no conflict of the testimony upon any material point in this case, the giving of instruction numbered nine was error. Since defendant was the only witness who had any interest in the result of the case, the only purpose this instruction served was to single out his testimony and give the jury to understand that the' court was of the opinion that he had sworn falsely to some material fact in issue. Keeline v. Sealy, 257 Mo. 498.

      Frank W. McAllister, Attorney-General, and Ilenry B. Hunt, Assistant Attorney-General, for respondent.
    (1) The testimony of Thompson as to the threat made by appellant two or three hours before the shooting, was properly admitted. State v. Guy, 69 Mo. 434; State v. Harlan, 130 Mo. 390, 394; State v. Fitzgerald, 130 Mo. 425; State v. Cochran, 147 Mo. 517; State v. Feeley, 194 Mo. .313; State v. Mitchell, 204 S. W. 802; State v. Fletcher, 190 S. W. 320; State v. Shoemaker, 183 S. W. 323; State v. Bailey, 190 Mo. 284. (a) The remoteness of threats does not affect their competency as evidence, hut goes only tp their weight. State v. Whitsett, 232 Mo. 529; ■ State v. Kretschmar, 232# Mo. 29. (b) The question of vagueness of the threats and to whom they referred, is for the jury. State v. Harlan, 130 Mo. 395; State v. Cochran, 147 Mo. 517; State v. Guy, 69 Mo. 434; State v. Fitzgerald, 130 Mo. 425. (c) It is the duty of the trial court to instruct the jury on the essential elements of the crime charged, whether requested or not. Sec. 5231, E. S. 1909; Sec. 5244, E. S. 1909; State v. Conway, 241 Mo. 284; State v. Lackey, 230 Mo. 720; State v. Weinberg, 245 Mo. 575. But it is not essential that the court instruct the jury upon collateral matters unless requested so to do by the accused. State v. Starr, 244 Mo. 183; State v. Conway, 241 Mo. 291. And when a defendant is entitled to an instruction limiting or modifying the effect of evidence, he must prepare and request such instruction. State v. Douglas, 258 Mo. 291. (2) There is no evidence upon which the trial court could have based an instruction regarding the power and authority of peace officers. See. 5231, E. S. 1909; State v. Campbell, 210 Mo. 229; State v. Nord, 230 Mo. 659; State v. Chinn, 153 Mo. App. 613. Nor is there any refused instruction on that subject set forth in the bill of exceptions. State v. Johnson, 255 Mo. 287; State v. Gaultney, 242 Mo. 390; State v. Eatherly, 185 Mo. 180. (3) The instruction on self-defense is not erroneous in using the expression “good reason to believe.” Sec. 4451, E. S. 1909; State v. Pennington, 146 Mo. 35; State v. Price, 186 Mo. 143; State v. Adler, 146 Mo. 23; State v. Higgerson, 157 Mo. 400; State v. McQuitty, 237 Mo. 236; State v. Miller, 264 Mo. 406; State v. Banks, 258 Mo. 492; State v. Darling, 202 Mo. 161. (4) The instruction on credibility of witnesses was properly given. Robert v. Rialto Bldg. Co., 198 Mo. App. 125; Weller v. Laboratories Incorporation, 197 Mo. App. 61; State v. Barnes, 204 S. W. 269.
   WALKER, J.

The defendant was charged by information with murder in the first degree, in having shot and killed Albert E. Demortiers, in the City of Qape Girardeau, October 27, 1917. Upon a trial, he was convicted of murder in the second degree, and his punishment assessed at eighteen years’ imprisonment in the Penitentiary. Prom this judgment he appeals.

About 9:30 p. m., the night of the murder, defendant showed one Thompson four or five 32-caliber revolver cartridges and said he was “going to get a dirty s— of a b— that night.” Thompson adjured him to keep out of trouble. Thereafter, at about 11:10 p. m., defendant was seen talking to the deceased, a policeman in uniform, on the corner of Broadway and Sprigg Streets, in Cape Girardeau. The deceased told the defendant if he didn’t behave he would have to get off of ■ the street or go home, or he would be locked up. The latter replied that the deceased was a d- liar and was the same policeman who had run him home from downtown. The deceased turned and laughingly said to a bystander:. “He mistakes me for another man.” Defendant then went into a near-by saloon, and the deceased went east on Broadway. Ten or fifteen minutes later the defendant and the deceased met in front of another saloon. While the deceased was engaged in conversation with one O’Connell, defendant stepped up behind them and said: “What are you fellows doing out here so late?” Deceased answering him, said: “Dad, you’d better go into the saloon or go home.” Deceased then proceeded west on Broadway, followed by the defendant. A few minutes later one Minton, also going west on Broadway, heard a shot fired. He looked up, and at a distance of about three hundred feet he saw the deceased and the defendant at the comer of Broadway and Middle Streets. The deceased had fallen on the north side of an iron electric light pole. As the witness looked up he saw the defendant step forward, stoop over the prostrate body of the deceased, and shoot him in the right side of the head. The defendant then turned and as he passed Minton, the latter saw the revolver with which he had done the shooting in his hand. There were two other eye-witnesses to the tragedy; a man and a woman, the former being at the time some distance away on Broadway, and the latter near at hand in a second-story room with a window opening on the scene. Their testimony, barring minor differences, was -the same as that of Minton. The woman saw the defendant walking towards the scene before he fired the first shot, and after the second she saw him go east on Broadway. No words passed between the deceased and the defendant before the latter fired the shots, and there was no scuffling. After the shooting the defendant was seen to make a throwing motion as if he were casting something away. A young man named Whitelaw, after the defendant’s arrest, searched a lot near at hand, in the direction in which the defendant had made the motion, and found a 32-caliber pistol which he-gave to an officer. It had five cartridges in the cylinder, two of which had been fired. Shortly after the murder, the defendant was arrested at his home. He denied having been down town that night, and made a like denial at the city jail. On his person were found several 32-caliber cartridges, and an open knife.

The deceased, when examined by those who hurriedly reached the scene, was still breathing, but died in a few minutes thereafter, without regaining consciousness. An examination of his body disclosed two bullet wounds; one had entered the right temple at the hair line, the outer skin aroiind the wound being powder-burned. This wound entered the skull and was fatal. The other wound entered the neck on the left side and ranged upward.

After defendant’s arrest he was taken to the jail. At that time he had no marks or bruises on his person, blood on his clothing, or any evidence of having engaged in an altercation. After being lodged in the jail, the chief of police and three other officers, at about 1:30 a. m., went to the jail building, opened his cell and called to him to come out. He rushed out at the chief, who hit him on the head with a billy. Straightening up from the effect of this blow, he again rushed at-the chief, who struck him a second time, from which blow he fell, the blood running down over his clothing. After he fell, the officer struck him several times with the strap end of the billy.

The testimony on behalf of the defendant was substantially as follows:

That his reputation as a law-abiding citizen was good; that on the evening of the killing he went home about ten o’clock p. m.; that about 11 o’clock he went back to town for a walk. After taking a drink at a saloon, he walked out on the street where he saw the deceased and another engaged in conversation, and asked them what they were doing out so late at night. Deceased told him he had better go inside br go home, or he would get hurt. Defendant then started home, going west on Broadway. Deceased stopped the defendant at the corner of Broadway and Middle Streets, where, at the time, the former was standing close to a lamp post. The deceased asked defendant if he had not told him to go home, and defendant said, Tes. Deceased then asked defendant where he was going, and he answered that he was going home. Thereupon the deceased asked the defendant if he had not told him he would get hurt if he did not go home and defendant said: “Who would hurt me?” Deceased replied, “I will,” and struck defendant with his fist, and kicked defendant in the groin, knocking his cane out of his hand. Defendant stooped to pick up his cane, and deceased struck Mm on the head with his cMb and knocked him to his knees. Defendant then drew his pistol, wjaich is the last thing he remembers until he found himself in the city jail. It was contended by the defendant that the bruises on his head-and the bloody condition of his clothes were the result of injuries inflicted on him by the deceased just before he was shot, and that they were not inflicted by the officers after the homicide, at the jail, as testified to by them.

I. The admission of the testimony of the witness Thompson, of a general threat made by the defendant three or four hours before the homicide, was not error. Evidence of this character is admissible as tending to show the malice prepense of the defendant, although the threat may not be directed against any particular person. "We so held in State v. Fletcher, 190 S. W. l. c. 320, although the threat in that case consisted simply in a declaration by the accused made several hours before the homicide, that ££I am going to get Mm some day.” In State v. Feeley, 194 Mo. l. c. 313, a general declaration made by the accused that ££he was a straight shot, and a game man, he,” the person addressed, not the one who became the victim, ££would find it out,” was admitted in evidence to show general malice and a disposition on the part of the accused to commit a crime.

The remoteness of the threat in the ease at bar was not a ground for its exclusion. This might, if sufficient time had elapsed between the making of the threat and the commission of the crime, have affected its probative force, but not its admissibility. In State v. Hyder, 258 Mo. 1. c. 230, the threat admitted in. evidence was made a year prior to the crime. We, therefore, overrule the contention as to the inadmissibility of the threat.

Police Officer. II. The contention is made that the court erred in not giving an instruction defining the authority of the deceased as a police officer; that defendant had been guilty of no conduct authorizing his arrest or justifying his being ordered off the streets. Granting this to be true, under the testimony of the defendant, this constitutes no defense to the killing. If the defendant is to be believed, as he was not by the jury, he shot the deceased in self-defense while the latter was making a deadly assault upon him. So far, therefore, as the right of the defendant is concerned, it was not material whether the deceased was an officer or not; besides, there was no evidence of any attempted arrest. The only fact which even simulates a purpose on the part of the deceased to arrest the defendant being the former’s repeated admonition to the latter to get off the streets, or he would be locked up. These admonitions were occasioned by the drunken condition of the defendant who, the witnesses say, “staggered very much;” but they did not culminate in an attempt on the part of the deceased to arrest or to attempt to arrest the defendant. There is no merit in this contention, and from defendant’s own testimony it may properly be characterized as an afterthought.

III. Defendant complains of the giving of the following instruction:

“The court instructs the jury that the right of self-defense is a right not only conceded but guaranteed by law to every person. So if you find and belive from the evidence that at the time defendant did ^ shooting, if you believe he did, the defendant had cause to believe and did believe it necessary for him to use his pistol on Albert E. Demortiers, the deceased, in the way he did in order to protect himself from some great personal injury at the hands of deceased, then you must acquit him on the grounds of self-defense. In such case it is not necessary that the danger should have been real and about to fall. All that is necessary is that defendant believed and had good reason to believe that such danger existed; on the other hand, it is not enough that defendant believed in the existence of snch danger, but he also must have had reasonable cause for so believing before he can be -acquitted on the grounds of self-defense.”

• The phraseology of this instruction is alleged to be erroneous and prejudicial in that it tells the jury that the defendant was justified in acting, defensively if he had “good reason to believe and did believe” that it was necessary for him to so act to protect himself from personal injury by the deceased, instead of using the language of the statute (Sec. 4451, R. S. 1909), that he had ‘ ‘ reasonable cause to believe and did believe,” etc. A distinction is attempted to be made between the use of the words “good reason” and “probable cause,” as employed in the one instance in the instruction, and the other in the statute, and the aid of lexicographers is invoked to show that the differences in the meaning of these words is sufficient to render the instruction invalid in not correctly defining the defendant’s right in this behalf; the burden of this contention being that “a good reason” must have a foundation in fact, while a “reasonable cause” may rest upon appearances alone. Disconnected from their settings in instructions, of this character, a technical support may be evolved for this contention, but it is purely technical. This instruction read as a whole shows clearly that it was not the real, but the apparent danger which would justify defensive action. This being true, the jury could not have been misled as to the defendant’s right in this behalf, which, under the facts, was in nowise different than if the words a “reasonable cause” had been employed in stead of a “good reason.”

Neither the McKenzie (177 Mo. l. c. 715) nor the Gordon (191 Mo. l. c. 122) case sustains the defendant’s contention. In the McKenzie case the instruction was in the language of the statute, and no question was involved as to the use of other or different terms. In the Gordon case the instruction as construed by the court was so framed as to. impress the jury that before the accused would invoke the doctrine of self-defense his danger must have been actual or real. The instruction at bar is not, from its terms, subject to this .construction. If precedents were needed to sustain the instruction as here given, they are not lacking. In State v. Pennington, 146 Mo. l. c. 35, an instruction almost identical in its terms to that in controversy was held to cover the law on self-defense, and that it was not error to refuse others on this subject asked by the defendant. In State v. Adler, 146 Mo. l. c. 23, an instruction on self-defense followed the language of the statute in employing the words, “had reasonable cause to believe and did believe,” etc. In State v. Price, 186 Mo. l. c. 143, an instruction employing the words “had good cause to believe and did believe,” etc., was held to be in line with the ruling in this regard in the Adler case, and hence the criticism of same was without merit. In State v. Higgerson, 157 Mo. l. c. 400, the trial court refused to give an instruction asked by defendant which employed the terms “good cause to believe and did believe,” etc. We held this ruling to be erroneous, in that the instruction correctly defined the defendant’s rights. In State v. Darling, 202 Mo. l. c. 161, the instruction on self-defense was condemned, not because it employed the terms, “had good reason to believe and did believe,” etc. (p. 165), but because in other respects it was not couched in such plain and unequivocal language as to be readily understood and comprehended by a jury of ordinary intelligence. In State v. McQuitty, 237 Mo. l. c. 236, the terms “good reason to believe,” and “reasonable cause to believe” were both employed in the instruction on self-defense and were held not to be an erroneous departure from the statute. In State v. Miller, 264 Mo. l. c. 406, the ruling in .the McQuitty case was approved in this language: “Appellant contends that the instruction for self-defense is erroneous. This instruction contains all the necessary elements to authorize the jury to acquit defendant if they found that the facts presented a case of self-defense. Almost an exact counterpart of the instruction is to be found in State v. McQuitty, 237 Mo. 232. If other precedents were necessary to sustain the instruction, they may be found in State v. Tooker, 188 Mo. l. c. 446, and State v. McCarver, 194 Mo. 1. c. 729, which, while differing in phraseology, contain all the essential elements to be found in the instruction under review and follow a long line of cases on self-defense beginning with State v. Shoultz, 25 Mo. 128. Interpreted according to its own words and context, the instruction under review is not fairly subject to appellant’s criticism. It is neither to be read nor construed by piece-meal,- but altogether. Thus read it is a plain and correct statement of the law in regard to self-defense. We hold, therefore, that the appellant’s contention in this regard is without merit.”

As sententiously stated by counsel for respondent in the instant case: “If one has good reason to be,lieve he must have a reasonable cause for such belief; and, if he has a reasonable cause for his'belief he must have a good reason for same.” Errors must be of hurtful effect to warrant a reversal; we do not so find the one here complained of.

V. The instruction as to the credibility of witnesses is held to have been erroneously given. Its form is not criticised, but it is contended that there was no conflict in the testimony, and hence the instruction was unauthorized. The transcript discloses that this conclusion is incor • rect. The defendant’s testimony was directly in conflict ■with that of all of the witnesses for the State; and there, was as sharp a conflict between the testimony of the witnesses for the State and those of the defendant in regard to the threats of the defendant. The giving of the instruction was, therefore, not error.

This case viewed from that impartial attitude which should characterize a review of the record, discloses no substantial defense. The murder was a ruthless one, and the light sentence given the defendant under the circumstances must, be attributed to the ability and ingenuity of his counsel, rather than any merit in his defense. Finding no error, the judgment is affirmed. It is so ordered.

All concur.


author: WILLIAMS, P. J.

text:
    THE STATE v. ALVIS JENNINGS, Appellant.
    Division Two,
    June 13, 1919.
    1. JURISDICTION: Abatement: In Legal Custody: Paroled Defendent. Notwithstanding defendant has been convicted in the same court and sentenced to jail for another crime, yet if he has been paroled and is at liberty under said parole, he is in no such legal custody as deprives the court of jurisdiction to proceed to try him.
    2. INDICTMENT: Perjury: Venue. An indictment for perjury is-not fatally defective because it fails to allege the venue of the offense in the case in which he is charged with having committed perjury. The venue stated in the margin of the perjury indictment is under the statute (Sec. 5107, R. S. 1909) taken to be the venue for all facts stated in the body of the indictment.
    3. PERJURY: Material Matter. To constitute perjury it is not necessary that the alleged false testimony be sufficient within itself to make out a case at the trial in which it is made, but it is only necessary that the false testimony be upon any material matter in that case.
    4. ARRAIGNMENT: At Former Trial. If defendant was arraigned and entered a plea of not guilty at his former trial, and said plea is not withdrawn, a new arraignment at a subsequent trial under the same indictment is not necessary.
    5. INSTRUCTION: Accomplices as Witnesses: Not Preserved. An assignment that the court, on defendant’s trial for perjury, erred in refusing to give a cautionary instruction as to the weight to be given to the testimony of the State’s witnesses who were his accomplices in the offense tried in the case in which the perjury is alleged to have been committed, cannot be considered on appeal if in no manner preserved in the motion for a new trial.
    6. PERJURY: Throwing Rocks at Street Car: Corporate Owner. In the trial of a defendant charged with having sworn falsely in a former trial of boys charged with having thrown rocks at a street car, it is not necessary to prove that the company owning the car was a corporation; for it is wholly immaterial in the perjury case whether the owner was or was not a corporation.

      7. '-: -: Moving Car: Complete Criminal Act. Nor was it necessary that the State prove that there was an understanding between defendant and his companions to throw rocks at a moving car. To be material in the perjury trial it is not necessary that the understanding or conspiracy contemplated a complete criminal act.
    8. -: False Testimony Concerning Any Material Link. False testimony concerning any material link in the chain of circumstantial evidence tending to establish guilt, is perjury.
    9. -: -: Proof. Nor is it necessary that the full assign- » ment of perjury be proven.. Proof of any portion thereof which is sufficient within itself to establish perjury will support .a conviction.
    Appeal from Greene Criminal Court. — Hon. .C. .H. Shinker, Special Judge.
    Affirmed.

      Hamlin £ Hamlin and Collins and Holladay £ Slough for appellant.
    (1) The indictment in this case is bad. The indictment charges that on the 12th day of May, 1917, defendant was placed upon his trial in the criminal court of Greene' County on a charge of having unlawfully thrown a rock at and into a street car of the Springfield Traction Company, while said car was in motion, but nowhere charges that defendant threw this rock or committed the complained of act in Greene County, Missouri, and without such allegations no offense is charged. “The cardinal'principle of pleading in prosecution for felony is: that' everything constituting the offense must be pleaded with cértainty and nothing he left to implication.” State v. Ferguson, 152 Mo. 92; State v. Hall, 130 Mo. App. 179; State v. Hagan, 164 Mo. 654. This indictment is again bad for the re^aáon it was wholly immaterial, on the charge of throwing a rock at a moving street car, whether this defendant had knowledge of or was implicated in any plan or agreement between himself and'.others, to throw- rocks at a moving street, car. ‘ ‘ Swearing falsely to a matter incidental, but utterly immaterial, to the issue, does not constitute the crime of perjury. ’ ’ Hinch v. State, 2 Mo. 158; Martin v. Miller, 4 Mo. 47; State v, Bailey, 34 Mo. 350; State v. Wakefield, 9 Mo. App. 326. (2). The court erred in overruling defendant’s plea in abatement,, the defendant being under sentence at the time of this trial for another felony. In legal contemplation he was in a .custody different from that of the criminal court of Greene County, and could not be placed upon trial until his term of imprisonment had expired. Ex parte George Meyer, 44 Mo. 279; State .v. Buck, 120 Mo. 479; State v. Bell, 212 Mo. 130. (3) The verdict is wholly against the evidence. It is fundamental that whenever it is necessary to allege a matter it *is also necessary to prove, that matter. It is alleged in the indictment that the Springfield Traction Company, at whose car defendant is alleged to have thrown a rock, was a corporation duly organized and existing under the laws of this State. It is also alleged in the indictment that the defendant.upon the trial of that charge committed perjury by falsely swearing that he did not conspire with others to throw rocks at a street car of the Springfield Traction Company, a corporation. There is no proof in this case that this Springfield Traction Company is or was a corporation, the record is absolutely silent as to proof on this all-vital allegation and for that reason alone this case under the holdings of this court must be reversed. State v. Horned, 178 Mo. 59; State v.'Henschel, 250 Mo. 263.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) The indictment is sufficient. Sec, 4596, R. S. 1909; Kelley’s Crim. Law, sec. 82l; Sams v. Railway, 174 Mo. 72; State v. Lang, 14 Mo. App. 249; Secs. 4344, 4350, R. S. 1909; State v. Gordon, 196 Mo. 198; State v. Cave, 81 Mo. 451; State v. Huckeby, 87 Mo. 415; State v. Nelson, 146 Mo. 259; State v. Taylor, 202 Mo. 2. (a) It was not necessary to state the venue of the offense of throwing stones at a street-car. Secs. 4350, 5107, 5115, R. S. 1909; State v. Keel, 54 Mo. 184; State v. Brown, 159 Mo. 648; State v. McDonough, 232 Mo. 227 ; .State v. Fields, 262 .Mo. 163. (b) Perjury was assigned upon matter material to the issue. State v. Ackerman, 214 Mo. 330; State v. Day,. 100 Mo. 249; State v. Faulkner, 175 Mo. 568, 572; State v. Wakefield, 73 Mo. 554; Harris v. Railway, 172 Mo. App. 270. (c) Evidence may be material although it does not tend to directly prove the issue. State v. Moran, 216 Mo. 561. (2) A plea in abatement must be filed before a plea of not guilty is entered; or, if a plea of not guilty has been entered, leave of court should be obtained to withdraw such plea before filing a plea in abatement. 12 Cyc. 357; Sunday v. The State, 14 Mo. 420; State v. Taylor, 171 Mo. 472; Grimes v. State, 105 Ala. 89; State v. Wells, 159 Pac. (Nev.) 521; Rogers v. State, 166 Ala. 12. Filing of the plea in abatement did not have the effect of withdrawing the plea of not guilty. State v. Gieseke, 209 Mo. 340; State v. Reeves, 97 Mo. 672. (3) Appellant having been formally arraigned upon the first trial of this cause, arraignment was not necessary at the second trial thereof. State v. Simms, 71 Mo. 539; State v. Tate, 156 Mo. 131; Kelley’s Crim. Law, sec. 221. (4) It was not necessary to prove that the Springfield Traction Company was a corporation. It was sufficient to prove that the alleged perjury was committed, Sec. 4350, R. S. 1909; State v. Huckeby, 87 Mo. 418; State v. Gordon, 196 Mo. 198; State v. Koslowesky, 228 Mo. 359.
   WILLIAMS, P. J.

Defendant appeals from a judgment of the Criminal Court of Greene County, sentencing him to two years’ imprisonment for the crime of perjury.

The evidence offered by the State may be summarized as follows:

On May 12, 1917, Alvis Jennings (the appellant herein) was put upon his trial in the Criminal Court of Greene County, Missouri, upon an information which charged him with the crime of throwing stones at a street car in the City of Springfield, while said car was 'in motion. Upon, that trial, Jennings testified in his own behalf substantially as follows:

That he did not throw a rock at this street car out near Broad and Dale Streets; that he did not ask or invite any of the boys with him to throw rocks; nor did he hear any of the boys riding with him in the automobile say anything about going out to rock a car; nor did he know of any such intention. On cross-examination he testified that he went out in an automobile with several boys for a ride; that nothing was said at the confectionery store where the crowd was made up that they would throw rocks; that he got out of the automobile two blocks from Broad and Dale Streets to urinate; that he saw no one throw rocks and heard no crash.of glass; that he followed his companions back to the automobile and then heard some of them say, “We threw rocks in the car.” That he had no intimation up to that time that the boys were intending to do anything of this kind. The above evidence of defendant upon the former trial was in substance testified to in the present trial by the circuit judge who tried the first case and by the court stenographer who took down the testimony at the time.

A street car conductor testified upon the present trial that in the month of January, 1917, he was on the street car one evening about nine o’clock, going-north on Broad Street; that when the street car reached Dale Street, three rocks struck it, two rocks going-through the side glass and one through, the vestibule door.

Clarence Geister testified that he, together with defendant, Jennings, went out to Dale and Broad Streets in an automobile about eight-thirty or nine o’clock on the night in question for the purpose of stoning a Broad Street car; that on the way ont appellant told them to pick np some rocks and be qniet. The whole crowd talked of throwing rocks at the street car and when the car came along appellant said, “Let them have ’em!” This witness admitted that he later plead gnilty of stoning the car and paid the cost and that the above transaction occured in Springfield, Gregne County, Missouri.

Peter Boyle testified .that he was in the automobile, with the appellant and the boys when they went down to Dale and Douglas Streets; that they threw rocks at the street car when it came along and then ran back to the automobile and left; that they discussed the proposition of stoning the street car at the confectionery store, and decided where to go after they got into the automobile. Later when they got out of the automobile appellant said something about them keeping still, and to stay on the dark side of the street, so they could go down without being noticed; that appellant was at the confectionery store when the crowd was form-' ed. This witness later pleaded guilty to a charge of stoning this particular street car. 11

Dewey Hulse testified that on the night in question he met the appellant and the other boys at the confectionery store; that the crowd of boys planned to go out to Broad and Dale Streets to throw rocks at a street car; that they rode out in an automobile to within two blocks of the above mentioned street crossing; there the crowd got out of the car and picked up some rocks and waited for a car and when the car came by, “We throwed at it.” Shortly before the attack appellant told the boys to be quiet and “pick up some rocks, and when the car got even with Dale Street, why throw them and all run.”

Defendant testifying in the present case stated that he was 21 years old; that he had nothing to do with and did not enter into any scheme with the boys mentioned to go out and rock street cars at the time referred to by the witnesses; that later he did plead guilty in the Criminal Court of Greene County, to the charge of shooting at a street car, hut this was an entirely different transaction and that he served a term in jail for the latter offense. On cross-examination he further testified that he** threw no rocks at the street car in question and did not know what the hoys went out there for, hut thought they were merely taking a joy ride; that he did not see the other hoys pick up or throw any rocks, and that he did not know that the boys éontemplated throwing rocks at the street car.

I. Appellant contends that the court erred in overruling his plea in abatement. This so-called plea in abatement amounts to nothing more than a motion to temporarily postpone the trial on the ground that defendant was, at the time of this trial, under conviction and sentence in the same court for another felohy. The facts disclosed upon the hearing of this motion were as follows:

Defendant’s trial in the present case occured December 21,1917. On May 28, 1917, in the Criminal Court of Greene Counfy, defendant entered a plea of guilty to an indictment which in substance charged him with feloniously, wilfully and maliciously shooting into a certain street car, being the property of the Springfield Traction Company. Upon said plea of guilty the court sentenced him to five months’ imprisonment in the Greene County jail. On August 13, 1917, said court paroled the defendant and at the date of the present trial defendant was at liberty under said parole.

In support of his present contention appellant relies upon Ex parte Meyers, 44 Mo. 279; State v. Buck, 120 Mo. 479, and State v. Bell, 212 Mo. 130.

In each of the three cases cited the defendant was, at the time of his trial, under sentence to a term in the, Penitentiary and no parole had teen granted.

Those cases seem to proceed upon the theory that after the defendant had been sentenced to a term in the Penitentiary “he was in legal contemplation in a custody different from that of the circuit court, ’ ’ and that therefore the circuit court was without jurisdiction to proceed with the trial of defendant for another offense until the first judgment had become satisfied or reversed. As to the soundness of these holdings we are not now called upon to determine. Matters of interest to the researcher upon that subject will be found in In re Tranmer, 41 L. R. A. (N. S.) 1095, wherein the subject is thoroughly discussed, both in the opinion and in an editorial note.

Conceding arguendo that the above mentioned cases cited by appellant announce the correct rule where the' defendant at the time of his trial is under a penitentiary sentence for another offense, yet we have no hesitancy in saying that the same should not be applied to the present situation where the defendant, at the time of trial, was not in “legal contemplation in a custody different from that of the circuit court,” but was perforce of the parole statute (Sec. 5364, R. S. 1909) in the legal custody of and under the jurisdiction of said court.

II. Appellant further contends that the indictment is fatally defective. In this behalf it is insisted that the indictment for perjury in the present case is defective because it fails to allege that the offense of throwing a rock at a moving street car, with which defendant stood charged in the first indictment, occurred in G-reene County, Missouri.

This exact question was passed upon in the case of State v. Keel, 54 Mo. 182, l. c. 187, wherein it was held that it was not necessary to allege in the body of the indictment for perjury, the venue of the crime for which defendant was being tried when the alleged perjury was committed, but that the venue stated in the margin of the perjury indictment was under the statute (Now Sec. 5107, R. S. 1909) “taken to be the venue for all the facts stated in the body of the indictment. ” «In the present indictment the venue was properly stated in the margin and on the authority of the case of State v. Keel, supra, the contention is disallowed.

Material Testimony. Material Testimony. III. We are unable to agree with appellant that the alleged false testimony was upon an issue not material to the charge of throwing rocks at a moving street car. If defendant and his associates on the night in question, at the time they proceeded from a down-town store in an automobile to a pla'ce near .where the moving car was attacked, had a common understanding or agreement that they would go out there to throw rocks at a street car, it would certainly be a very material circumstance and one which the State would have the right to show. '

It is not necessary that the alleged false testimony be sufficient within itself to make out a case, or prevent the making of a case, but it is only necessary that the-false testimony be upon ‘/any material matter,” etc. [See. 4344, R, S. 1909.]'

In the case of State v. Wakefield, 73 Mo. 549, l. c. 554, the rule here applicable was stated as follow: “Whether all the links in the chain of circumstantial evidence necessary to its completion are supplied or not, a witness who has sworn falsely in regard to any link is as guilty as if the evidence fully supplied that and all other parts. A criminal charge is proved step by step.”

To the same effect are the following authorities: State v. Day, 100 Mo. 242, l. c. 249; State v. Faulkner, 175 Mo. 546, l. c. 568; State v. Ackerman, 214 Mo. 325, l. c. 332.

IV, It is further contended that the conviction cannot stand because the record fails to show that defendant was duly arraigned before he was put upon The record does show that ' defendant was duly arraigned and entered a plea bf not guilty upon the first trial under this same indictment. The former plea not having been withdrawn, a new arraignment was not necessary, even under the old rulings (State v. Simms, 71 Mo. 538; State v. Tate, 156 Mo. 119, l. c. 131), much less so under the new and recent rulings of this court upon the subject. .[State v. O'Kelley and Fitch, 258 Mo. 345; State v. Allen, 267 Mo. 49, l. c. 55.]

Y. It is further contended the court erred in refusing to give a cautionary instruction as to the weight to be given the testimony of the witnesses who were accomplices with defendant in the crime of throwing rocks at the street car. The above point’ was . , » m no manner preserved m the motion tor anew trial and the same is therefore not properly'before us for determination.

YI. It is further contended that the evidence is insufficient to support the verdict. In his behalf it is insisted that the State should have proven, trot failed to prove, that the Springfield Traction Company was a corporation.

Appellant in the case at bar was not being tried for the offense of throwing rocks at a- street car alleged to have been the property of the Springfield Traction Company, a corporation. In the present case he was being tried for perjury alleged to have been committed upon the trial of the former offense.- It was therefore- wholly immaterial to any issue in the present case to show that the owner of the car was a corporation. State v. Horned, 178 Mo. 59, ’ and. State v. Hensehel, 250 Mo. 263, cited and relied upon by appellant, have no application whatever to the present situation and are therefore not in point.

It is further insisted that the State should have proven, but failed to prove, that there was an understanding between defendant and his companions to throw rocks at a moving street car. We are unable to agree with this, contention. It was not necessary in order to be material that the alleged agreement or conspiracy existing between defendant and his companions should have been sufficiently comprehensive to have provided for a complete criminal act. If the understanding between defendant and his companions was that they would go out and throw rocks at a street car on the night in question, that fact alone supplied a material link in the chain of circumstantial evidence of guilt and was a sufficient basis upon which to make an assignment of perjury. It is not necessary in a perjury case that the full assignment of - perjury be proven. Proof of any portion thereof, which is sufficient within itself to support a conviction of perjury, is all that is required of the State. [State v. Day, 100 Mo. 242, l. c. 249; Kelley’s Criminal Law' and Practice (3 Ed.), paT. 243, p. 201.]

The judgment is affirmed.

All concur.


author:
BLAIR, J.
     WALKER, J.

text:
    THE STATE ex rel. UNITED RAILWAYS COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    June 14, 1919.
    1. MOTION FOR NEW TRIAL: General Assignment. A motion for a new trial which assigns as grounds therefor that “the court erred in refusing to give and read to the jury legal and proper instructions requested by defendant” and that “the court erred in giving and reading to the jury illegal and misleading instructions on behalf of plaintiff and over defendant’s objection thereto” is sufficient to present for review the question of the correctness or incorrectness of the instructions given or refused. [Following Wampler v. Railroad, 269 Mo. 1. c. 476. et seq., decided in Court in Banc,-and holding that said case, and not Kansas City Disinfecting & Mfg. Co., 273 Üo. 300, decided in Division, was- the last previous decision on the point. WALKER, FARIS and WILLIAMS, JJ., dissenting.]

      Held, by WALKER, J., dissenting, that Section 1841, Revised Statutes' 1909, which- declares that “all motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion,” is explicit in its terms, mandatory in its nature, helpful in its purpose, and especially applicable to motions for a new trial urging error in the giving or refusing of instructions, and a general assignment of such error is not sufficiently specific to authorize a review thereof on appeal; and that to condemn the trial judge because he did not seek out specific error, in obedience to a general assignment challenging the correctness of the instructions, is unfair to him.
    2. CONFLICTING OPINIONS: Last Controlling Decision of Supreme Court: Decision-in Division: Prior Decision In Banc. Held, by BLAIR, J., with whom WOODSON and .GRAVES, JJ., concur, that a subsequent decision rendered in Division does not overrule or displace a prior decision made in Court in Banc, except in so far as it affects the particular case in which it is made; and that where there is a conflict in such decisions on a question of law or equity, it is the duty of the Court of Appeals, in ascertaining what is the last controlling opinion of ■ the Supreme Court, to follow the last previous decision of Court in Banc.

      Certiorari.

    Record quashed.

      H. 8. Priest, Morton Jour dan and T. E. Francis for appellant.
    The Court of Appeals erred in holding that the errors assigned in the brief filed by appellant (relator here), assigning error on the giving of a certain instruction for respondent and the refusal to give certain instructions requested by appellant, could not be considered by the court for the reason that the motion for a new trial filed by appellant is not sufficiently specific; and said ruling is in conflict with the following controlling decisions of the Supreme Court: Wampler v. Railroad, 269 Mo. 464; Stid v. Railroad, 236 Mo. 382, 397; Collier v. Lead Co., 208 Mo. 246, 256; Weber v. Railroad, 100 Mo. 205.

      Earl M. Pirkey for respondent.
    (1) “A majority of the judges of a division shall constitute a quorum thereof, and all orders, judgments and decrees of either division, as to causes and matters pending before it, shall have the force and effect of those of the court.” Mo. Constitution, Amendment of 1890, sec. 1. (2) “And the last previous ruling of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of- appeal.” Mo. Constitution, Amendent of 1884, sec. 6. (3) Division Two of the Supreme Court has decided that an assignment in the motion for a uew' trial that the court erred in refusing to give and mad to the jury legal and proper instructions requested by defendant, is insufficient to secure 'a review in the appellate court in the action of the court in refusing the instructions. Kansas City Disinfecting & Manufacturing Company v. Bates Co., 201 S. "W. 92; "Wynne v. Wagoner Undertaking Company, 204 S. W. 15; State v. Rowe, 271 Mo. 88; State v. Selleck, 199 S. "W. 129. (4) The assignment in the motion for a new trial in a .civil case that the court erred in refusing to give and read proper instructions given by defendant, is insufficient to secure a review by the appellate court of the refused instructions. "Wynne v. "Wagoner Undertaking Co., 204 S. "W. 15; Kansas City Disinfecting & Manufacturing Company v. Bates Co., 201 S. "W. ' 92 ; Wffimpler v. Railroad, 269 Mo. 464. (5) A claim made for the first time in the motion for rehearing comes too late when the opportunity and occasion for making the claim arose before. Strother v. Railroad, 203 S. W. 207; Bilby v. Stewart, U. S. Supreme, March 4,1918.
   BLAIR, J.

Certiorari. In the case of Lampe v. United Railways/202 S. W. 438, the St. Louis Court of Appeals had before it a motion for a new trial upon these grounds:

“Because the court erred in refusing to give and read to the jury legal and proper instructions requested by defendant.
“Because the court erred in giving and reading to the jury erroneous, illegal and misleading instructions on behalf of plaintiff and over defendant’s objections thereto. ’ ’

The Court of Appeals held that these allegations of the motion were insufficient to present for review the question of the correctness or incorrectness of the instructions given and refused. It based this conclusion upon Kansas City Disinfecting & Mfg. Co. v. Bates County, 273 Mo. 300. In that case Polski v. St. Louis, 264 Mo. 458, Wampler v. Railroad, 269 Mo. 466, and State v. Rowe, 271 Mo. 88, are cited in support of a holding that an assignment in a motion for new trial that “the court refused proper declarations of law offered by the plaintiff is insufficient.”

In Wampler v.. Railroad, 269 Mo. 1. c. 476 et seq., this court, in banc, expressed its views on general assignments in motions for new trial in civil, cases. The cases were cited and discussed, and the practice for decades referred to. It was held that the true rule is (1. c. 483): “When the motion for new trial charges that the court erred as to the giving or refusing of instructions, it but calls the attention to the things which the court has done or has failed to do. It sufficiently advises the court that he has erred in his judgment of the law of the case.” The principle thus announced and applied by Court in. Banc is applicable to this case. The language in the motion in the Wampler case, which refers to “each and all of the instructions,” is no less general in fact than that in the motion considered in this case. Both formulas challenge all the instructions. Intimations to the contrary in decisions cited ought not to be followed.

The Court of Appeals was .confronted by an unusual situation. The case it cited was decided in Division and post-dated the decision of Court in Banc in the Wampler case. In these circumstances the Court of Appeals held the divisional decision to be binding and followed it. While the decision of a division (“as to causes and matters pending before it,” Sec. 1. Amd. of 1890 to Const.) is a decision of the court, it is not possible to hold that it overrules or displaces a decision of Court in Banc except in so far as it affects the particular case in which it is made. When a divisional judgment becomes final it is final despite any conflict between the decision upon which it rests and decisions of Court in Banc. So far as concerns the law in principle, however, the decision of Court in Banc is still the law and is in no wise modified or affected by a conflicting divisional decision. It is apparent that if a conflicting divisional decision does not and cannot overrule or displace or affect a principle established by a decision of Court in Banc, then the Court in Banc decision remains the law and remains the live decision on the question. To say a divisional decision conflicting with a decision of Court in Banc is “the last previous ruling of the Supreme Court” within the meaning of Section 6, Article 6, Constitution of Missouri, p. 101, Revised Statutes 1909, would be equivalent to holding that a Division had overruled Court in Banc, i. e. that a part is greater than the whole. For these reasons we conclude the decision in the Wampler case was the “last previous ruling” within the meaning of the Constitution.

Another thing worthy of note is that in the divisional case cited, a second and independent reason was given for the course pursued.

We hold that the opinion conflicts with the controlling decision of this court, and that the record must be quashed.

WooiB-on and Graves, JJ., concur; Bond. C. J., concurs in result; Walker, Faris and Williams, JJ., dissent.

WALKER, J.

(dissenting.)—I do not concur in the conclusion reached in the majority opinion, that the motion for a new trial therein is sufficiently specific in regard to the instructions, to authorize a review of same. The cardinal purpose of our code of procedure is one of simplicity" and directness. This purpose is manifest wherever the clear current of the administrative law has not been clouded by inccngrueras amendments. In no particular instance is this truth more strikingly illustrated than in Section 1841, Revised Statutes 1909, which provides that “all motions shall he accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion.” An observance of the requirements of this section cannot but aid the trial court in readily ascertaining and speedily determining the errors assigned, especially as to the instructions. These, as even the novice in the practice knows, are only subjected to general objections when given or refused, and the trial judge is afforded no intelligent opportunity to correct an error therein until he rules upon the motion for a new trial. Unaided by any specific allegations, and having only for his guidance an indiscriminate, general declaration challenging the correctness of the instructions, he must perforce in the discharge of his duty, review the entire record to determine whether or not in the heat and haste of the trial, error in that regard has been committed.

It is clear to my mind that this “slip-shod” and misleading practice of making general assignments of error, in regard to the instructions in motions for a new trial, is in the very teeth of the statute (Sec. 1841)’; contrary to, the purpose of the code; and that it entails what would otherwise be unnecessary labor upon the trial courts. Of such evident importance, therefore, to our practice is the right interpretation of this statute that I have not hesitated to express at some length my protest against the adoption of the majority opinion. This too, notwithstanding the fact that the writer of the dissenting opinion in the Wampler case, 269 Mo. l. c. 486, and his associate, Judge Faris, in the Rowe case, 271 Mo. 88, traced the history and mutations of Section 1841 from its early incorporation into our code down to the present revision, with the result that it is shown beyond cavil that this section was intended to apply to motions for new trials as well as others, and that a disregard of same is unauthorized under all reasonable rules of interpretation.

Furthermore, it was not necessary to a determination of the matter actually at issue in the motion for a new trial in the majority opinion in the Wampler case, that it be there held that a general assignment of error in such motion concerning the instructions will suffice to authorize a review of same. This for the reason,that the motion in that case was sufficiently specific to conform to the requirements of Section 1841, which was not the."fact in the case at bar; and hence ther general observations of the learned writer of that opinion may not unfairly be classified as obiter so far as they conclude that said section is not controlling.

Explicit in its terms, mandatory in its nature, and helpful in its purpose, the section should not be ignored. Hence this dissent.