text:
    THE STATE v. MARTIN, Alias RED, KING, Appellant.
    Division Two,
    November 24, 1908.
    1. ROBBERY: Circumstantial Evidence. Robbery may be established by circumstantial evidence; and the evidence in this case is reviewed and held to clearly establish that defendant and an accomplice robbed deceased, and assaulted him, and inflicted upon him the wounds from the effects of which he remained in a dazed condition till his death twelve days later.
    2. -: Recent Possession of the watch worn by the deceased victim of the robbery affords strong and reasonable ground that the party in whose possession it was found committed the-robbery, unless he can account for such possession in some way consistent with his innocence.
    3. -:-: Admission. And such presumption arising from recent possession is greatly strengthened by voluntary admissions from the possessor that he and another held up the owner.
    4. -: Death of Victim: Referred to by Counsel. Where the wife of the victim of the robbery had testified that he had come home badly wounded and in a dazed condition and so remained until his death twelve days later, it was perfectly competent for the . State’s attorney to allude to his death in his argument to the jury in the robbery case, and thereby account for his absence as a witness by referring to this testimony.
    ' Appeal from St. Louis City Circuit Court. — Ho». Hugo Muench, Judge.
    Affirmed,

      Henry M. Walsh for appellant.
    The main contention in this case is that there is no evidence of any character to show that the person named in the information, John Hnppert, had ever lost anything- by violence to his person or by putting him in bodily fear. The statements which are alleged to have been made by the defendants to some other persons do not show that a robbery was committed. The coming home of Huppert, with his clothing torn and dirty, some of his property missing, does not indicate that he lost his property by reason of any violence. He might have lost his property as the result of an accident, many different ways might have been suggested as to the exact method in which he secured the torn trousers pocket, the dusty hat and clothing, but there is no word of any kind from Huppert to show that the loss of his property was at any time or in any way involuntary, without his consent. There was no witness to say when and where Huppert parted with his property, if at all. If this contention be right then there is nothing to this case. That is, if it is necessary to show in a case of first degree robbery, the elements of violence or putting a person in fear of violence, an actual taking of property of another forcibly, without the consent of the prosecutor, then there is nothing in this case which should have been permitted to go to a jury.

      Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) Circumstantial evidence tending to prove that the crime had been committed was properly admitted. 4 Elliott on Evidence, sec. 2708. Circumstantial evidence and evidence of attendant circumstances was properly admitted to prove that defendant committed the crime. 4 Elliott on Evidence, secs. 3029, 3133, 3134. (2) The court did not err in permitting the circuit attorney to comment on the death of Huppert, the victim of the alleged robbery. The remarks of the circuit attorney complained of were based upon the testimony of Eugenia Huppert, to the effect that Huppert, from the time of the alleged robbery, was weak from loss of blood, and was in a dazed condition for about twelve days and until he died. That testimony was admitted without objection from defendant. In view of the meager and incomplete remarks of the circuit attorney, and the comment and rulings of the court thereon, defendant could not have been in any maimer prejudiced by said remarks. In order to justify a reversal of the judgment, it should appear to the court that the remarks complained of were prejudicial to defendant, and probably had something to do in bringing about the conclusion reached by the jury. State v. Church, 199 Mo, 638; State v. Hibler, 149 Mo. 484.
   GANTT, J.

The prosecution of this case was begun April 24, 1907, by information filed by the assisttant circuit attorney in the circuit court of the city of St. Louis, charging that the defendant and Albert Kapp on the 6th of April, 1907, at the city of St. Louis, feloniously committed an assault in and upon one John P. Huppert, and by force and violence to his person did rob, steal, take and carry away one gold-filled American Waltham watch, one gold-filled watch chain, one Royal Arcanum charm, one pocket knife, one pocketbook and thirty-five cents in money, all of the value of fifty dollars, from the person of the said John P. Huppert, and against his will, with the intent then and there to deprive him of the use thereof and to convert the same to their own use.

The defendants were duly arraigned and pleaded not guilty, and on the 27th day of May, 1908, were tried before a jury, and each was found guilty and the punishment of each assessed at imprisonment in the penitentiary for twenty years. . In due time the defendants filed their motions for new trial, which were overruled, and thereupon the court reduced the punishment of the defendant King to ten years in the penitentiary and sentenced him accordingly, and from that judgment he appeals to this court.

The testimony introduced by the State tended to show that John F. Huppert was a barber residing at 1423 Blair avenue, and working at 2219 N. Broadway in St. Louis. At about 6 o’clock on the morning of Saturday, April 6, 1907, Huppert left his home for his place of business. He was wearing at the time his gold watch and chain and charm, and carried his pocket knife, finger nail trimmer, poeketbook and small change. At about 11:45 that night he returned home in a very bad condition; over his right eye was a deep cut as if made by a blunt instrument, his eye was swollen, his face bruised, he was bleeding profusely at the nose and mouth, and his clothes were covered with dust, dirt and blood, and one of his pockets was torn. He was very weak from loss of blood and was in a dazed condition, in which he remained for about twelve days, when he died. His watch and chain and the other articles named were gone and the pocket that was torn was bloody. About one hundred and fifty or two hundred feet from Huppert’s residence on the route of his usual travel to and from his place of work, was an alley opening into Blair avenue. At a point in said alley, at its entrance from Blair avenue, was found a short time after Huppert’s return home that night, a pool of blood and from this point to his home was a trail of blood. About ten feet from the pool of blood in the alley was found a piece of his watch chain. It further appeared in evidence that at Fourteenth street and Cass avenue, about one block and a half from the said alley at Blair avenue, was a warehouse and wagon and coal yard, where, on the night of the said 6th day of April, 1907, a number of hoys and young men, among them George Harris, Joseph Wallace, James Miller, Peter Niesen, the defendants, Albert Kapp and Red King, were congregated and engaged in drinking beer. About 11:30 that night Kapp and the defendant King left their companions at that place and were gone about twenty minutes, returning just before midnight, out of breath, excited and with their clothes mussed up. Upon being asked by Niesen, one of the said party, as to what was the matter, one of them said it was none of their business, and to the same inquiry put by another companion they replied that they had held up a man on Blair avenue and got a watch off of him, and they were going out before they got arrested. Niesen testified, “They came back and said that they had a watch and thirty cents, and they had better pull out before the cops got them,” and, “Then they said they stuck up a fellow at Blair and Cass and got thirty cents and a watch.” Niesen testified that it was his impression that it was Kapp who did this talking, and Miller, another of the party, thought that it was the defendant King that did the talking. Harris testified: “I remember Kapp coming in and he said he had held up a fellow on Blair and Cass avenue for a watch.” About 12 o’clock, the defendants Kapp and King being in the act of taking their leave of the party, two officers approached and they all ran. The officers arrested four of the associates of the defendants and recognized and called to the defendant King as he took his flight. Up' to that time, the officers had not heard of the assault upon and the robbery of Huppert. The defendant Kapp on being arrested, a few days later, said that on Saturday night after nine o ’clock, he was too drunk to know where he was or what he was doing.

About 5:30 o ’clock in the afternoon of Sunday, the next day, William Meyers and Charles Miller met the defendant, King, on the street, and Meyers asked King who held up Huppert, and he replied that he and Kapp did. The defendant King requested Meyers to meet him at 7:30 o’clock that afternoon when he would give Meyers Huppert’s watch, which he then had at his home, to take to Huppert and say nothing. At the appointed hour Meyers met King and received from him Huppert’s watch, which he took to Huppert’s house and delivered to Huppert the next morning. King also told Meyers and Miller that the holdup occurred on Blair avenue.

Mrs. Huppert, corroborated by her daughter, testified that two men giving their names as Murphy and Miller brought her husband’s watch back to him at his home on Monday morning, April 8th, and they also brought fifty dollars to Huppert and had him sign a little note that he was mistaken in the man Miller, that Miller was not the man who had held him up. The watch and chain were introduced in evidence.

At the close of the evidence, the defendants moved the court to direct the jury to acquit them, but this motion was overruled and the defendants offered no evidence. The court instructed the jury on the offense of robbery in the first degree, upon reasonable doubt, circumstantial evidence, presumption of innocence and the credibility of witnesses. As the only objection to these instructions was that they did not cover all the law applicable to the case, and as they are not now challenged in this court by counsel for the defendant, we deem it unnecessary to burden this statement with them. It is sufficient to say that after a careful examination of them, we can discover no error in them.

The main and practically only contention on this appeal is that there is no evidence in the' record to show that Huppert, the deceased, had ever lost anything by violence to his person, or by putting him in deadly fear. In a word it is insisted that as there was no eye-witness to the alleged robbery and no person present who testified that Huppert was deprived of his property by force and violence to his person, it is impossible to infer that he was deprived of his said property without his consent and by force and violence. As above indicated the absence of Huppert’s testimony was accounted for by the fact that he died about twelve days after the said assault and robbery from the injuries he received that night; and that he made no dying declaration identifying the defendant as the perpetrator of the robbery, is not strange when the evidence shows that from the time he reached his home that night until his death, twelve days later, he was in a dazed condition. That robbery as well as other crimes may be established by circumstantial evidence is not questioned, and that the evidence in this case established the guilt of both of the defendants, it seems to us cannot admit of a reasonable doubt. When last seen prior to the assault and robbery Huppert was in his usual health and had upon his person his watch and chain and Royal Arcanum charm and his pocketbook with some small change in it. When he returned home that night by the usual route, he was discovered in a dazed condition of mind and Aveak from the loss of blood occasioned by fresh and seArere wounds upon his head, his clothes were disheveled and covered with dirt and blood and his money, watch, watch chain and charm were gone, a trail of blood led back from his home to the mouth of the alley, where there was a pool of blood, and at this place was found a piece of his watch chain. Indeed there was every indication of a felonious and violent assault upon him and that his assailants were the two defendants was -evidenced by their possession of the property, the next day, which he was wearing upon his person at the time of the assault. In State v. Kelly, 73 Mo. l. c. 614, this court quoted with approval the language of Wills on Circumstantial Evidence, 64, as follows: “Since the desire of dishonest gain is the impelling motive to theft and robbery, it naturally follows that the possession of the fruits of crime, recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they were found was the real offender, unless he can account for such possession in some way consistently with his innocence.” This doctrine has been uniformly announced by this court both before and since the decision in State v. Kelly, supra.

But this judgment does not rest upon the presumption of guilt from the possession merely of the stolen goods, but that presumption is strongly corroborated by the admissions and statements of the defendant himself immediately after the commission of the robbery in which he and Kapp stated that they had held up a fellow on Blair and Cass avenue, for a watch, and their further statements that they were going to leave before they were arrested. But the most damaging testimony against the defendant was that of William Meyers, who testified that he had known both Kapp and the defendant King for five years, and that on April 7th, the next day after the robbery, the witness and one Miller were together and met the defendant King on 14th street and Cass avenue in St. Louis about half past five in the afternoon. This witness identified the watch in evidence as one which the defendant King had handed to him on April 7th, the day after the robbery. He testified that King, the defendant, requested him to come to King’s residence about half past seven, and he would give him the watch to take to Huppert and requested him to say nothing, and that he went to the place and the defendant gave him the watch, which was identified as the property of Huppert, and that he took this watch to Huppert the next Monday morning. And this evidence was corroborated by Charles Miller. These witnesses also testified that the defendant told them that he and JCapp had held up Huppert. In view of all of this evidence, it seems to us that there is little merit in the contention that there was failure of proof as to the commission of the offense of robbery in the first degree. On the contrary, we think the testimony was overwhelming as to the guilt of both the defendant and Kapp.

As to the complaint that the State’s attorney was guilty of improper conduct in alluding to the death ofHuppert in the course of his argument, there is no merit whatever. Mrs. Huppert had testified that her husband had come home that night in a dazed eonditi on and had remained in that condition until his death twelve days later. It was perfectly competent for counsel to account for the absence of Huppert as a witness by referring to this testimony. It was in the record without any objection, and if any had been made it would have been properly overruled.

The defendant, in our opinion, had a fair and impartial trial, and every essential element of the crime of robbery in the first degree.was established by the evidence beyond a reasonable doubt.

The judgment must be and is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. EDWARD CARROLL and EDWARD GLEASON, Appellants.
    Division Two,
    November 24, 1908.
    1. ROBBERY: Information: Without Consent. It is not essential to the validity of an information charging an attempted robbery that it charge an intent to deprive the owner of his property without his consent. If it charges that the attempt was with violence and by force and against his will, no force is added to the charge by saying it was “without his consent.”
    2. -: -: Ownership of Property. It is not necessary in a robbery case or a case of attempted robbery, that the information charge or the evidence show who was the actual owner of the money which defendant attempted to steal. If the information charges that Hoxey was in the actual possession of the property that is sufficient, and if the evidence shows that it was in his actual possession it is sufficient to sustain the charge, whether Hoxey or a corporation or partnership for whom he was the manager was the actual owner. If Hoxey was in the lawful possession of the money the information should charge that Hoxey was the owner and that defendant attempted to rob Hoxey of his money and property, although the money may have helonged to a company or corporation.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Affirmed.

      G. Orrick Bishop aud Henry M. Walsh for appellants.
    (1) The indictment charges that the defendants named assaulted T. P. Hoxey and did feloniously attempt to rob, steal, take and carry away the money and personal property of the said Hoxey, etc., with the intent then and there to deprive the owner of the use thereof and to convert the same to their own use, but wholly fails to charge an intent to deprive the owner of the use thereof without his consent, an essential element of the crime of larceny, of which robbery is but an aggravation. The indictment therefore only charges a trespass and not an attempted larceny. (2) There is no evidence in the case as to whom the money alleged to he in the safe, and which appellant is charged with attempting to steal by violence, belonged. The prosecuting witness stated that his employment in the Buss mill was that he was in charge of the whole plant and that the money belonged “to the J. B. Buss Mills” but it was not disclosed what “The J. B. Buss Mills” was — a company, corporation, partnership' or individual. The court also undertook in its instructions to bolster up this defect in the evidence by telling the jury that if they believed, etc., “that such money or property was either the property of said T. P. Hoxey or the property of a company or corporation by whom said Hoxey was then and there employed and for whom the said Hoxey then and there had sole charge, possession and responsibility of the said money or property” (instruction second). There was no claim of any kind that the money or property was the individual money or property of the prosecuting witness, but on the contrary that he was in charge of it for somebody else. It is true the statute reads: “or who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent in charge thereof,” etc. (R. S. 1899, sec. 1893; amended, Laws 1903, p. 162); nevertheless, it must appear that the property in question belonged to somebody — a company, corporation, person or individual; and how is it possible to tell from the evidence what was “The J. B. Buss Mills'?” and there is no question here of an unknown owner. State v. Davis, 138 Mo. 107; State v. Horned, 178 Mo. 59; State v. Jones, 168 Mo. 398; State v. Kelley, 206 Mo. 685.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The information is sufficient in form and substance and follows the language of the statute which describes the offense. State v. Lamb, 141 Mo. 301. (2) In the information it was laid that the money was the property of T. P. Hoxey. The evidence showed that the money was the property of the J. B. Buss Mills, and that the same, at the time of the attempted robbery, was in the possession and proper custody of T. P. Hoxey by virtue of his employment as manager, servant and agent of the J. B. Buss Mills, (a) The information properly charged the attempted robbery of Hoxey and laid the property in him. Laws 1903, p. 162; State v. Montgomery, 181 Mo-. 19. (b) And 'there is no ground upon which to raise the question of variance between the statement in the information as to ownership and the evidence adduced in proof thereof. R. S. 1899, sec. 2534; State v. Nelson, 101 Mo. 477; 4 Elliott on Evidence, sec. 3130‘.
   FOX, P. J.

This cause is here upon appeal by the defendants from a. judgment in the circuit court of the city of St. Louis, convicting- them of the offense of attempted robbery in the first degree. The offense upon which the judgments are predicated was thus charged in an information filed by the assistant circuit attorney:

“State of Missouri,-City of St. Louis, ss.
“Circuit Court, City of St. Louis, December Term, 1906.
“Richard M. Johnson, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows:
“That Edward Carroll and Edward Gleason on the twenty-first day of December, in the year of onr Lord, one thousand nine hundred and six, at the city of St. Louis aforesaid, with force and arms in and upon T. P. Hoxey, violently and feloniously did make an assault, and by force and violence to his person and by putting him in fear of immediate injury to his person, did then and there violently and feloniously attempt to rob, steal, take and carry away the money and personal property of him, the said T. P. Hoxey, from his person and in the presence and against his will with the intent then and there to permanently deprive the owner of the use thereof and to convert the same to their own use, and in such attempt did then and there violently and feloniously strike the said T. P. Hoxey with a hilly and did then and there violently and feloniously with a pistol, loaded with gunpowder and leaden ball, shoot and wound the said T. P. Hoxey, in and upon the head and body of the said T. P. Hoxey, but did then and there fail in the accomplishment of such robbery, against the peace and dignity of the State.
“Rich. M. Johnson,
“Assistant Circuit Attorney.
“State of Missouri, City of St. Louis, ss.
“Richard M. Johnson being duly sworn, upon his oath, says that the statements made in the foregoing information are true.
“Rich. M. Johnson.
“Subscribed and sworn to before me this 21st day of January, 1907,” etc.

To this information the defendants entered their pleas of not guilty, and on April 3, 1907, they were put upon their trial. The evidence upon the part of the State tended substantially to prove the following state of facts: That what is known as the Buss Mill was located at No. 7550 North Broadway, in the city of St. Louis, Missouri, and that T. P. Hoxey was the manager and cashier of said mill and the person in charge of its property and money, and that in a small safe in the office of that mill, under the care and in his custody, on the 21st day of December, 1906, there was $440, the property of the J. B. Buss Mills.

Conrad Hart, aged about nineteen years, testified that for eight or ten years he had been acquainted with the defendants, who were about his age. He said that in the fall of 1906 he had been out in California with the defendant Gleason, and had talked several times with Gleason on the subject of robbing’ the Buss Mill, where Gleason told him there was lots of easy money for them to get when they returned to St. Louis. Early in December Hart returned, to St. Louis and met the defendants, but nothing further was said about the suggested robbery until the day before the attempt was made, when Gleason asked Hart to go out to the Buss Mill, and said that the money was easy to get. The next morning' Gleason met Hart again and arranged for a meeting between Hart, Gleason and defendant Carroll at a later hour that morning. Pursuant to appointment, Hart met the defendants about 10:30 a. m., each, according to arrangements, having brought with him his overcoat. None of them had any money and the overcoats were brought for the purpose of pawning them in order to raise money with which to buy revolvers and ammunition and carry out the plan of robbery. They visited several pawnshops and pawned the overcoats of Hart and Carroll, thereby raising seven dollars. Gleason kept his overcoat. With the money thus obtained they visited stores, and Hart and Carroll each bought a cheap revolver and some ammunition. About noon they ate and drank together and soon afterwards took a car on the way to the mill on North Broadway. Hart said that while on the way they talked over the plan by which the robbery would be effected, Gleason, he said, doing most of the talking. The plan was to approach the mill on foot, Hart and Gleason to enter the office and Carroll to remain outside, to which Carroll agreed, and said that he would be outside while they went in, and if there was any fighting he would come running right over. The plan contemplated was that Gleason and Hart would enter the office, pretending to be employer and employee, and ask the use of the telephone, and, on the pretext of sending Hart for a fixture, they were to ask to have a two dollar bill changed, and thereby secure access to the money in the mill safe. About three blocks from the mill they left the car, and took a drink in a saloon, where they were seen by witness Joseph Conway. Prom the saloon they walked to the mill, Hart and Gleason walking on the east side of Broadway, on which side was the mill, and Carroll, according to plan, following on the west side of that street. Gleason was wearing his overcoat, and had with him for a weapon a billy, which was a short piece of leather with a knob and having a strap for wrapping around the hand.

The testimony of Hart, T. P. Hoxey and Pat O’Neill tended to prove that Hoxey and O’Neill were sitting in the office when Hart and Gleason entered. Gleason asked the privilege of using the telephone, which was in the office, and, being permitted to do so, he called up a plumbers’ supply company and talked about a fixture, or piece of fitting, for which he was going to send, and, as he hung up the telephone, he turned to Hart and asked whether Hart had money for the car fare. Hart replied that he had not, whereupon Gleason asked Hoxey if he could change a two-dollar bill. Hoxey, saying that he could do so, stepped to the safe, which was a small safe about three feet high sitting on the floor of the office, opened the safe and took from it the said money, of which he was in charge as manager or agent for said J. B. Buss Mills, and was stepping over, making change with the money on top of the safe, when defendant Gleason struck him on the head with a billy. The blow blinded or stunned Hoxey for a moment, but he instantly turned and grappled with Gleason. Just as he did so, Hart, who, for the moment, had covered O’Neill with his revolver, pointed the revolver at Hoxey and fired a shot which hit Hoxey in the breast and inflicted a wound. Defendant Gleason, becoming released from Hoxey, ran out of the office, leaving his hat there, which had fallen from his head during the struggle. The two-dollar bill, which Gleason had requested Hoxey to change, also remained in the office. Out upon the street, Hart and Gleason met the defendant Carroll waiting, who, according to Hart, inquired if they got any money. All three ran rapidly away. As they ran, Gleason handed his overcoat, marked with his name on the inside pocket, to Carroll. Carroll carried the overcoat along with him and placed his revolver in its pocket. After running some distance, an officer came upon them and arrested Hart, but defendants got away. Carroll, in his flight, threw away Gleason’s overcoat, which, with Carroll’s revolver in the pocket thereof, the officer in pursuit secured, Defendants were successful for a time in making their escape, but about one month later they were apprehended and arrested in New Orleans. The billy and Carroll’s revolver were introduced in evidence. The witness, Conrad Hart, at the time of the trial, had already pleaded guilty to a separate information charging him with attempted robbery on account of his participation in this adventure.

Defendants offered no evidence.

At the close of the case the court instructed the jury and the cause was submitted to them. It is not necessary to reproduce the instructions, as counsel for appellants in their brief do not challenge the correctness of them. After dne consideration of the cause the jury returned separate verdicts finding the defendants guilty, and assessing their punishment at imprisonment in the penitentiary for a term of six years. Timely motions for new trial and in arrest of judgment were filed by each of the defendants, which were by the court overruled. Sentence and judgment were entered in accordance with the verdict and from this judgment the defendants have prosecuted this appeal, and the record is now before us for consideration.

OPINION.

Learned counsel for appellants in their brief and argument present but two legal propositions for our consideration:

First. It is insisted that the information is insufficient to support the judgment in this, that it fails to charge an intent to deprive the owner of the use thereof without his consent. In other words, it is contended that it was essential to the validity of this information that it charge an intent to deprive the owner of the use of his property without his consent.

Second. That the evidence fails to show to whom the money, alleged to be in the safe, belonged. We will give these propositions in the order named such attention as their importance merits:

I.

In our opinion the information in this case is sufficient and there was no necessity for the use of the terms to which our attention has been directed by learned counsel for appellant, “without his consent,” in order to make the charge a valid one. This information properly charges every essential element necessary to constitute the offense of which the defendants were convicted. The information, it will be observed, directly charged the acts of violence in the attempt to perpetrate a robbery of the prosecuting witness, and all of these acts were done against the will of the party upon whom the attempt was made. Certainly if it was against his will, it was without his consent, and we take it that it was not essential to use the terms, mthout Ms consent.

In State v. Lamb, 141 Mo. 298, the sufficiency of the indictment, which was one for robbery, was challenged by counsel for appellant, and it was expressly ruled by this court that the indictment was sufficient, and the information in the case at bar is substantially in the same form as in the Lamb case, with the exception that in the one case the charge was for robbery, and in the other attempted robbery; but so far as concerns the essential elements constituting the offense of robbery, an examination will demonstrate that the charge in the two cases is substantially the same.

To the same effect is the information in State v. Montgomery, 181 Mo. 19. The defendant in that case was convicted of robbery, and the judgment was affirmed. The information upon which the judgment was predicated, in charging the offense of robbery, employed substantially the same terms as embraced in the case at bar.

The information in this case is in perfect harmony with approved precedents. Neither the Lamb Case nor the Montgomery case, which were charges of robbery, employed the use of the terms without Ms consent, which counsel for appellants in the case at bar contend are essential to the validity of the information now being considered.

II.

It is insisted by appellants that the evidence fails to show to whom the property belonged which was attempted to be taken. We are unable to give our assent to tliis insistence. The information substantially charged that the defendants violently and feloniously attempted to rob, steal, take and carry away the money and personal property of him, the said T. B. Hoxey, and. the testimony in this case, beyond any doubt, shows that T. P. Hoxey at the time of the attempted robbery was in the possession of the property. As against the robbers it was properly charged that T. P. Hoxey, who was in the lawful possession of the money and property, was the owner of it, and the mere fact that during the progress of the trial it appeared that T. P. Hoxey was in charge of the property for the J. B. Buss Mills, does not authorize the defendants to interpose the defense that the J. B. Buss Mills were the actual owners of the property, or the further defense that the information failed to allege, or that the proof failed to show, that they were either a partnership or a corporation. In the information there was an entire absence of any allegation that the J. B. Buss Mills had any connection with this property, and even if it be conceded that they were the actual owners of the property, yet if Mr. Hoxey was in the lawful possession of that property, the charge was manifestly proper that the defendants attempted to rob T. P. Hoxey of his money and property. We repeat, that as against the defendants T. P. Hoxey stood as the owner of that property, of which he was in the lawful possession.

In State v. Montgomery, supra, the authorities upon this proposition were exhaustively reviewed. In that case it appeared that one Mr. Radford was the real owner of the property but a man by the name of Mills was in the lawful possession of it, and the information charged the ownership of the property in Mills, and after a careful consideration and exhaustive review of all the authorities upon this proposition, the court said, speaking through Judge Gantt, that “Mills, then, being lawfully in possession by virtue of his employment as clerk for Mr. Radford of the money in the cash register, had a sufficient ownership, thereof as against the defendant to justify the laying of said money in him for the purposes of this prosecution against the defendant who robbed him of the same and a sufficient ownership to meet the requirement of the statute that said money should be laid as his. The information properly charged the robbery of Mills and laid the goods in him; otherwise, there can be no robbery in such circumstances.”

Learned counsel for appellant direct our attention to the case of State v. Davis, 138 Mo. 107; State v. Horned, 178 Mo. 59; State v. Jones, 168 Mo. 398; State v. Kelley, 206 Mo. 685. An examination of those cases will demonstrate that they charged the ownership of the property in some company, either a mercantile company, or a railroad company. It was held that it was essential, if those companies were a partnership, to give the names of the partners, or if a corporation to so charge in the information or indictment. It is by no means ruled in those cases, and it is not even suggested, that if some individual was in possession of the property the ownership of it could not be laid in such person.

T. P. Hoxey was in the lawful possession of this property, and it was charged that he was the owner of such property, and the proof fully sustains the allegations of ownership1. There is no pretense that the testimony in this case was insufficient to support the verdicts.

We have given expression to our views upon the only propositions urged by counsel for appellants, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. WILL HARVEY, Appellant.
    Division Two,
    November 24, 1908.
    1. PRELIMINARY HEARING. If the statute requiring a preliminary examination before a justice of the peace had not taken effect at the time the information was filed in the circuit court, the information should not be quashed for that no such preliminary examination was had.
    2. -: Bound to Prosecute by Indictment. Because a preliminary examination is held before a justice of the peace and the defendant is bound over to "answer the charge before the court in which the same is cognizable,” the State is not precluded from proceeding under an information filed in the circuit court. The statute does not. require the justice to hold the accused for the action of the grand jury. Because a grand jury is thereafter held, the State is not bound, after the filing of an information and an examination before a justice of the peace, to proceed by an indictment,
    3. ASSAULT: Instruction: Shooting in Arm: Intent to Kill. It is not error to refuse to instruct the jury that if ■ defendant shot another in the arm the law presumes that he did not intend to kill him. It does not follow that, because defendant shot at the other with a deadly weapon and hit him in the arm, he did not intend to kill him, but only to wound him.
    4. REMARKS OF COUNSEL. Unless the appellant saves an exception to the court’s disapproval of the remarks of the State’s attorney to the jury, as not being a sufficiently severe rebuke, he cannot on appeal complain of the failure of the court in that respect.
    5. -: Prejudicial. In order to justify a reversal of the judgment on account of improper remarks by the prosecuting attorney, it should appear that the remarks were prejudicial to appellant; that is, that they influenced the verdict of the jury.
    Appeal from Audrain Circuit Court. — Eon. Jas. D. Barnett, Judge.
    Affirmed.

      Clarence A. Barnes for appellant.
    (1) The court erred in overruling defendant’s motion to quash the information. Laws 1907, p. 243. (2) The court erred in overruling defendant’s motion to dismiss the information and to order the release and full discharge of defendant. Laws 1901, p. 138; sec. 2476, R. S. 1899'. (3) The court erred in refusing to give defendant’s refused instruction 3. State v. Grant, 144 Mo. 66. (4) The court erred in permitting the statements of the prosecuting attorney in his opening statement of the case and in his closing argument to the jury, and in not reprimanding him severely, for the. statements were calculated to prejudice and in fact did prejudice the minds of the jury against defendant. State v. Furgeson, 152 Mo. 99; State v. Shipley, 174 Mo. 512. (5) The court erred in refusing defendant’s instruction in the nature of a demurrer offered at the close of the State’s case, also in failing to sustain defendant’s motion for new trial and in arrest of judgment.

      Herbert S\ Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The information was filed in the circuit court on the 5th day of June, 1907. The act requiring a preliminary examination in felony cases before filing of information did not become effective until July 14, 1907. Therefore, at the time the offense was committed, and at the time the information was filed, the law permitted the filing of an information without first according the defendant a right to a preliminary examination, aud defendant’s motion to quash was properly overruled. (2) At the time this information was filed the law permitted, but did not require, a preliminary examination to be first held in a case of this kind. Article 2, chapter 16, Revised Statutes 1899', provided for a preliminary examination which might result in the defendant being held to appear and “answer the charge before the court in which the same is cognizable,” but no law required the examining magistrate in any case “to hold the defendant for the action of the grand jury,” as contended by defendant. It is very clear that the law in respect to preliminary examinations, indictments and informations, as it then stood, authorized a preliminary examination upon which a defendant charged with a felony not a capital offense might be held to answer a charge in the circuit court to be preferred in that court either by indictment or by information. State v. Jeffries, 210 Mo. 320'. (3) Defendant’s refused instruction 3 was properly refused. That the defendant hit Briscoe in the arm the first shot and missed him entirely the second shot did not raise a presumption of good intentions on the part of defendant, nor prove that he only intended to wound. The criminality of the act and the guilt of the accused do not depend on the accuracy of the aim. 4 Elliott on Evidence, secs. 2818, 2829; 3014; State v. Musick, 101 Mo. 260; State v. Mulhall, 199 Mo. 202; State v. "Williams, 191 Mo. 205.
   GANTT, J.

On June 5, 1907, at the June term of the circuit court of Audrain county, the .prosecuting attorney filed an information charging that the defendant at said county on the 16th day of May, 1907, upon AY. "W. Briscoe made an assault with intent to kill, with malice aforethought.

Previous to that date an information had been filed before L. N. Bass, a justice of the peace, charging the defendant with carrying concealed weapons, and a warrant was issued by the said justice of the peace returnable forthwith, and it appears that on May 18, 1907, the warrant was returned, executed in Howard county, by arresting the defendant and having his body before the justice. And the hearing was set down for May 22,1907. On May 18,1907, John D. O’Rear, Esq., the prosecuting attorney of Audrain county, filed an amended information against the defendant charging him with a felonious assault in and upon the bodies of W. W. Briscoe and Ben Cripe, and the shooting at the said Briscoe and Cripe with a felonious intent the said Briscoe and Cripe then and there to kill and murder. On May 21, 1907, a preliminary examination was had and the justice adjudged that there was probable cause for the prosecution, and held the defendant for the action of the circuit court at its June term, 1907. At the June term of the circuit court, the defendant filed his motion to quash and dismiss the information filed in the circuit court, which motion was overruled, and the defendant obtained leave to file a term bill of exceptions on or before the second day of the September term, and duly filed the same. The defendant was arraigned at the June term, 1907, and entered his plea of not guilty, and on his application the cause was continued until the September term of court, at which term he was put upon his trial and convicted of an assault with malice aforethought, and his punishment assessed at seven years in the penitentiary. From the sentence upon that verdict, the defendant has appealed.

The evidence on the part of the State tended to prove that W. W. Briscoe, a railroad freight brakeman, was standing on the station platform at Mexico, Audrain county, Missouri, about 9:30 p. m. on May 16, 1907, talking with conductor Sweezy and to two or three other railroad men who were there waiting- for the freight train .to pull out. They were talking and laughing among themselves, when the defendant came up and asked what they were laughing about. Sweezy replied that he did not know that it was any of the defendant’s business, whereupon, the defendant said, “I will make it some of my business. I am talking to both of you, and I mean what I say,” and then ran his hand in his overcoat pocket and started to draw a gun, and pulled it about half way out, whereupon, Briscoe seeing the revolver about to be pulled, struck the defendant a blow on the jaw. At this point Sweezy ran over the platform of the east end of the car to the other side of the train and Briscoe followed him. As Briscoe reached the ear platform steps, the defendant fired his revolver at him, striking Briscoe in the left arm, and thereupon the defendant crossed over the next platform around the west end of the car. Briscoe remained a moment on the east end of the platform and stepped over on the other side, and as he stepped off of the opposite side the defendant called to him to halt and fired a second shot at him. On the evening of the day of said shooting, the defendant had redeemed a revolver which he had in pawn at the pawnbroker’s shop in Mexico. On the 18th of May, two days after the shooting, L. B. Ringwall, a locomotive fireman, testified that he had a conversation with the defendant in which he asked him what he meant by trying to run a bluff with a gun, and in that conversation the defendant said that he was there that night, but that he did not do the shooting; that he saw the man who did it, he was a well-dressed man and had on a light overcoat and a derby hat.

Ben Cripe also testified that he was present at the time of the shooting, and he was quite sure that the defendant was the mail that did the shooting, although he could not swear positively that he was the man.

At the conclusion of the State’s case, the defendant asked an instruction requiring the jury to acquit him, which the court refused. The defendant offered no evidence.

I. The defendant assigns the overruling of his motion to quash the information as error. The ground of this motion was that the defendant had never been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleg’ed to have been committed before the filing’ of the information in the circuit court. This contention is based on the Act of the Legislature approved April 15, 1907, to be known as section 2476a, which provides: “No prosecuting or circuit attorney in this State shall file any information charging any person or persons with any felony, until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county in which the offense is alleged to have been committed in accordance with article 3 of chapter 16, Revised Statutes 1899.” [Laws 1907, p. 243.]

Inasmuch as the information in this case was filed in the circuit court on the 5th of June, 1907, it is apparent that the Act of April 15, 1907, had not yet taken effect, and did not until July 14, 1907, ninety days after its passage and approval, as there was no emergency clause to the act. At the time this information was filed, the law did not require a preliminary examination before the filing of the information.

II. It is also insisted that the court erred in overruling the defendant’s motion to dismiss the information and discharge the defendant for the reason that the prosecution was begun by filing an information before a justice,of the peace and that that proceeding was preliminary to the finding of an indictment against the defendant, and that a grand jury had been impaneled at the June term thereafter and no indictment had been found. By holding the preliminary examination under these circumstances, it is insisted that the prosecuting attorney had adopted the method of proceeding by indictment to the exclusion of the procedure by information, and as section 2476, Revised Statutes 1899, provides, “But that method of procedure which shall he first instituted by the filing of the indictment or information for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined,” therefore, the prosecuting attorney had no right to file his information in the circuit court. At the time this prosecution was commenced, the law permitted but did not require a preliminary examination to be first held in a case of this kind. By virtue of the provisions of article 2 of chapter 16, Revised Statutes 1899, after finding there was probable cause for charging the prisoner, he was committed to jail or admitted to hail to appear and answer the charge before the court in which the same is cognizable, but the statute did not require the examining magistrate to hold the defendant for the action of the grand jury as is contended by the defendant. After the change in the Constitution permitting the prosecution of felonies by information as well as by indictment the statute authorized a preliminary examination upon which a defendant charged with a felony might be held to answer a charge in the circuit court to be preferred in that court, either by indictment, or by information. The purpose of the preliminary was the same in either case. As was said in State v. Jeffries, 210 Mo. 302, the object of a preliminary examination was to prevent suspicious persons from escaping and to secure their presence for a trial after indictment by a grand jury, or upon information filed by the prosecuting attorney. We think the contention of the defendant on this point is not tenable. Moreover, the record in this case does not show that a grand jury was convened at the June term of the circuit court, 1907, by order of the judge of said court.

III. The refusal of the defendant’s third instruction is assigned as error. That instruction was as follows:

“The court instructs the jury that the law presumes that a person intends the natural and. probable consequences of his acts, and if you believe from the evidence in the case that the defendant assaulted with a deadly weapon, a loaded revolving pistol, W. W. Briscoe in the arm, the law presumes that defendant did not intend to kill him.” The decision of this court in State v. Grant, 144 Mo. l. c. 66, is cited in support of this contention. In that case, the instruction was as follows: “The court instructs the jury that the law presumes that a person intends the natural and probable consequences of his acts, and if you believe from the evidence in the case that the defendant assaulted with a deadly weapon,-a loaded pistol, David Cook, in a vital part of the body, the law presumes that defendant intended to kill him.” That instruction was approved, but it is plain that it is altogether a different instruction and is supported by a large number of cases cited in the decision mentioned. But it does not follow that, because the defendant shot at Briscoe with a deadly weapon “and hit him in the arm, he did not intend to kill him, but only intended to wound him. The criminality of his act did not depend upon the accuracy of his aim, and there is not a particle of evidence in the record that he intended only to wound him. We think the court very properly refused the instruction. It was for the jury under all the facts and circumstances in evidence to determine the intent with which the defendant fired the shots at Briscoe. [State v. Williams, 191 Mo. 205.]

IV. The remarks of the prosecuting attorney in making his statement and argument to the jury are assigned as error.

In three instances the defendant complained of the remarks of the prosecuting attorney. In the first the prosecuting attorney withdrew his remark after being rebuked by the court, and in each of the other two instances the objection of the defendant’s counsel was sustained and the prosecuting attorney was censured by the court, and in neither of the latter instances did the defendant save any exception at the time to the action of the court as not being sufficiently severe. In State v. Baker, 209 Mo. l. c. 451, it was said by this court, “No exception was taken and saved at the time as to the insufficiency of the rebuke by the court and the point must therefore he considered as waived.” [State v. Murphy, 201 Mo. 691.] Moreover, we have carefully considered the remarks complained of and the rebuke of the court at the time, and its direction to the prosecuting attorney to confine himself to the record, and we cannot think that under the circumstances these remarks influenced the verdict of the jury in any manner. In order to justify the reversal of a judgment, it should appear that the remarks were prejudicial to the defendant. [State v. Church, 199 Mo. l. c. 638; State v. Hibler, 149 Mo. l. c. 484.]

V. The insistence that the evidence did not support the finding of the jury we think is without merit. The assault was wanton and unprovoked and was characterized by a total disregard of the law.

There was ample evidence to support the verdict and the judgment is affirmed.

Fox, P. J., and Burgess, J., concur.


text:
    E. J. WILLIAMS, Appellant, v. OLIVIA BUTTERFIELD et al.
    Division Two,
    November 24, 1908.
    1. CONVEYANCES: Constructive Notice: Spoliation of Record. Where the original deed, presented in evidence and through which defendants claim, shows on its face that it was acknowledged by the grantor and the notary in his certificate thereon so certifies, and the recorder attached thereto his certificate showing it was recorded, defendants, who are innocent purchasers through that deed, are not to lose their title by the fact that someone drew a red line through the blank form of the acknowledgment in the record book where the deed was recorded — it being the custom of the recorder when a deed was not acknowledged to draw a red line through the blank form reserved for an acknowledgment in the printed form of deed records. The grantees are not to be held responsible for the failure of the recorder to properly record their deed, especially when they have received from him a certificate, attached to the deed itself, certifying that it has been recorded as it is; and certainly this should be the ruling when there is no explanation of who drew the red line, and the plaintiff, a subsequent grantee from the same grantor, testified that he had never seen the record, but relied on an abstract which did not reveal any defect in the acknowledgment of defendants’ deed.
    2. -: -: -: Facts Established by Proof. And defendants have a right to establish, by their original deed and the acknowledgment thereon and the certificate of record, that the deed had been duly recorded, and this fact being so established the record was constructive notice to a subsequent, purchaser, notwithstanding the unauthorized spoliation of the record after the deed had been recorded by the drawing of a red line through the certificate of acknowledgment.
    3. --: -:--: -: Retrial After Appeal. And notwithstanding this court on the former appeal held that the record with the red line through the acknowledgment was not admissible in evidence as constructive notice, and remanded the cause “that defendant may have an opportunity of introducing any other evidence in this cause, and showing that plaintiff had actual notice of the former conveyance to defendant,” yet, if at the subsequent trial the original deed, which was lost at the first trial, is offered In evidence, and of itself demonstrates that it was properly acknowledged, it is admissible in evidence, and can be used to show thaf it was properly recorded and the record was spoliated either carelessly or by some unauthorized person. All the court decided on the former appeal was that a deed- not properly acknowledged was not admissible to record, and that the record of such a deed did not impart constructive notice.
    Appeal from St. Francois Circuit Court.1 — Hon. G. A. Killian, Judge.
    Affirmed.

      Martin L. Glardy and James F. Green for appellant.
    (1) Defendants Darby and Hobson having purchased the property, pending the appeal, are bound by the decision heretofore rendered in this case. O’Reilly v. Nicholson, 45 Mo. 160; Becker v. Stroeher, 167 Mo. 306; Burnham v. Smith, 82 Mo. App. 47; Bridge Co. v. Stone, 174 Mo. 35; Holloway v. Holloway, 103 Mo. 283; Hart v. Steedman, 98 Mo. 452; Turner v. Babb, 60 Mo. 342; Mcllworth v. Hollander, 73 Mo. 112. (2) "Where a cause is remanded with directions as to further procedure, it is not within the power of the trial court to reopen the case and try it anew. Chouteau v. Allen, 74 Mo. 59; Reis v. McDaniel, 131 Mo. 682; Stump v. Hornback, 109 Mo. 272; Shroyer v. Nicoll, 67 Mo. 589; Hurck v. Erskine, 50 Mo. 116; Young v. Thrasher, 123 Mo. 312; May v. Crawford, 150 Mo. 504; Baker v. Railroad, 147 Mo. 152. (3) The case having been remanded with specific directions to the trial court to try one question only, it was error to recewe testimony upon any other issue. State ex rel. v. Edwards, 144 Mo. 467; Reis v. McDaniel, 131 Mo. 682; Tourville v. Railroad, 148 Mo. 623; Riley v. Sherwood, 155 Mo. 37.

      Edward A. Rosier and Robert L. Wilson for respondents.
    (1) The facts being essentially different from those on the former appeal, this court will not be bound by its former opinion. Crispen v. Hannovan, 86 Mo. 168; Fuchs v. St. Louis, 167 Mo. 653; May v. Crawford, 150 Mo. 525; Vaughn v. Railroad, 78 Mo. App. 644; Crumley v. Webb, 48 Mo. 562. (2) This court will not permit an injustice to be worked by reason of a former opinion. Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beck-with, 140 Mo. 370; Vaughn v. Railroad, 78 Mo. App. G43; Bealey v. Smith, 158 Mo. 523; Bank v. Douglas, 146 Mo. 53; Chamber’s Adm. v. Smith, 30 Mo. 159; Sparks v. Brown, 46 Mo. App. 534. (3) . The appellate courts are always open, even upon the second appeal, for the correction of error and the administration of justice. Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 370; Vaughn v. Railroad, 78 Mo. App. 643; Bird v. Sellers, 122 Mo. 32; Bealey v. Smith, 158 Mo. 522; Baker v. Railroad, 147 Mo. 152; Hamilton v. Marks, 63 Mo. 167. (4) The former opinion in this case is not stare decisis, hence, the court will do justice between the parties on the facts. Bealey v. Smith, 158 Mo. 523; Hamilton v. Marks, 63 Mo. 167. (5) The facts, whether by error or design, not having been presented to the Supreme Court in the first appeal, the doctrine of res adjudicata should not apply. Baker v. Railroad, 147 Mo. 152; Mfg. Co. v. Troll, 77 Mo. App. 344. (6) The deed from Bohlcke and wife to Wolfenden having been duly acknowledged, filed for record and in fact duly recorded, imparted notice to all subsequent purchasers. Secs. 692, 2419, R. S. 1889. (7) The deed from Bohlcke and wife being in the chain of title, all subsequent purchasers were bound to take notice. Wolfe v. Dyer, 95 Mo. 545; Tydings v. Pilcher, 82 Mo. 384. (8) Plaintiff under the allega tions of his petitionJias entirely failed to prove his cause of action.
   FOX, P. J.

This is an action brought in the circuit court of Stoddard county, Missouri, to quiet the title to certain lands in Stoddard county, to-wit, section eleven, township 26, range 12, east.

The amended petition states in substance that on. the 13th of December, 1888, Henry Bohlcke was the owner of the said lands and that on that date one Francis J. Peters falsely and fraudulently represented to Henry Bohlcke, with intent to deceive him, that he was the duly authorized agent of the Electrolytic Gas Generator Syndicate of Detroit, Michigan, to sell the stock of said syndicate; that said syndicate was duly incorporated under the laws of Michigan, and had a paid-up' stock of one million dollars, and would be one of the most prosperous syndicates in the country; that an investment in said stock would bring to the investor quick and larger profits than any other investment possibly could; that said Henry Bohlcke, relying wholly upon the said representations of said Peters and having no knowledge of the value of said stock, accepted as truth what Peters had said, and having no means of obtaining any information as to the value thereof, agreed to sell said real estate to said Peters for three shares of the capital stock of said syndicate, and at the same time said Bohlcke and wife made out and acknowledged a deed to' said land leaving the consideration clause blank and the space in which the grantee’s name was to be written was equally blank, and in that condition the said deed was delivered to said Peters, said Bohlcke’s acknowledgment first having been erased, and in return for said deed said Peters delivered to said Henry Bohlcke three shares of the stock of said syndicate; that said deed was not to be recorded, nor the grantee’s name placed therein until said Bohlcke could investigate said syndicate, and said deed was delivered to said Peters merely as an evidence of a contract to be afterwards performed. That said land was to be conveyed to-a trustee, the conditions of which trust were to be afterwards determined and decided upon when said trade was finally con-, summated. That all of the statements made by said Peters were false and were made for the sole purpose of deceiving said Bohlcke and procuring said real estate; that no such corporation as the Electrolytic Gas Generator Syndicate was ever organized under the laws of Michigan and the said syndicate and its seven shares were wholly fictitious, and of no value, and were so known to said Peters at the time of said transfer, and that said Bohlcke never received any other consideration from said Peters, or from the defendants for the said land, except said worthless shares; that after said deed was so delivered in said condition to said Peters, said Peters wrote or caused to be written, the name of Frederick Wolfenden as grantee in said deed, but left the consideration clause blank, and in said condition he caused said deed to be recorded in book 8, page 362, of the deed records of Stoddard county, Missouri; that said Wolfenden knew or might have known of the facts above related by the use of ordinary care; that afterwards on the 27th of March, 1889, the pretended conveyance was pretended to be executed, designing to purport to convey said real estate by said Wolfenden to the defendants, John Ahbot and Olivia L. Butterfield, which said pretended deed is recorded in the deed record of Stoddard county in book W, page 351, but plaintiff states that said Wolfenden is a fictitious person and did not exist; that defendants at the time knew of said related facts and of the fraud practiced on said Bohlcke in obtaining said deed from him. That afterwards on the 15th of December, 1893, defendant John Abbott and wife executed a mortgage on said real estate to defendant Charlotte J. Walker, recorded in book Z, page 608, of the records of Stoddard county, but that said Charlotte knew of the above related facts and of the fraud employed in obtaining said deed from said Wolfenden; that afterwards on the 3d of March, 1893, upon and after due process of law, said Bohlcke obtained a judgment against Frederick Wolfenden on account of said fraud divesting said Wolfenden of the title of said land and vesting the same in Henry Bohlcke; that on the 2d day of April, 1894, said Bohlcke and wife conveyed said real estate to the plaintiff, Edward J. Williams, and said plaintiff, Edward J. Williams, paid a valuable consideration for said real estate, and knew nothing of the claims or pretended claims on the part of any defendant, but believed that he was getting a good and valid title to said real estate; that he knew of none of the pretended conveyances above recited, or of any claims on the part of the defendants, had no knowledge or information which would lead him to believe there were any claims to said real estate at that time other than those of said Henry Bohlcke; that plaintiff paid taxes on said real estate from and after said conveyance until 1897, believing that he had title thereto, and defendants knew that he was paying said taxes in good faith, and did not inform him of other claims; that defendants were therefore estopped by said silence from setting up claims against said plaintiff. There was a prayer that the rights and interest of the respective parties be determined and defendants divested of any title they have acquired in said real estate, and the title be declared in the plaintiff.

The defendant Olivia Butterfield filed a general denial of the said petition, and alleged she was the owner of said property sued for and had paid for the same in good faith.

The case was tried in the circuit court of Stoddard county and a judgment rendered for defendants. Plaintiff appealed to this court and the judgment was reversed and the cause remanded. The opinion of this court will be found in the 182 Mo. 181.

. After the cause was remanded, the circuit court of Stoddard county granted a change of venue to St. Francois county, and it there appearing that the original files in the case had been lost, leave wás obtained to supply the record, which was done. In the St. Francois court John J. Hobson and S. Darby, upon their own applications, were made defendants and filed their separate answers, in which they adopted the answers of the defendants, Butterfield and Abbott, and denied all the allegations of the petition, and allege that they had purchased said lands pending the appeal in the Supreme Court; that they purchased in good faith without any knowledge of the fact that said cause was still pending and undetermined, but believing that they acquired absolute and undisputed title to said premises. Plaintiff filed replications to the answers of Hobson and Darby denying all of the new matter therein contained.

On the 14th of January, 1905, the cause was heard and the court rendered its decree finding* the issues in the cause for the defendant and adjudged the title to be in said Plobson and Darby, and thereupon, after an ineffectual motion for new trial, the cause has again been appealed to this court. The facts developed on this last trial were in substance as follows:

It was mutually agreed that Henry Bohlcke was the common source of title and thereupon the plaintiff offered and read in evidence a warranty deed dated April 2, 1894, signed by Henry Bohlcke and wife conveying to Edward J. Williams, the plaintiff, the land in controversy; the deed was acknowledged on the 2d of April, 1894, before D. R. Cox, a notary public of Dunklin county, Missouri, and recorded in Stoddard county on the 18th of May, 1894, in hook' 16, page 303. The plaintiff thereupon called the attention of the court to the mandate and opinion of this court in Williams v. Butterfield, 182 Mo. 181, and rested. The defendants then read in evidence testimony of Francis J. Peters taken upon the former trial of this case and preserved in the bill of exceptions in that case. Peters testified that at Bohlcke’s request he traded the land in question for the stock in the Electrolytic Gas Generator Syndicate of Detroit, Michigan, which was received by him and that thereafter Bohlcke wrote to him to know to whom to make the deed and that it was decided with the consent of Frederick Wolfenden that he should take the title to the land as trustee for one Mr. Wood and did so, and the deed was made accordingly; that he saw the deed after it was sent by Bohlcke to Wolfenden, and that it was duly acknowledged and in regular form, but that he never had it, and knew nothing of its whereabouts. J. H. Butterfield testified that as agent of his wife he purchased this land in March, 1889, for a valuable consideration and without any notice that any fraud had been practiced upon said Bohlcke. The defendant also offered in evidence a certified copy of the deed of Henry Bohlcke and wife to Wolfenden as the same appears of record at page 362 in book 8, from which it appears that Henry Bohlcke on the 15th of December, 1888, acknowledged this deed before Daniel Haynes, a notary public of Stoddard county, Missouri, and that this acknowledgment was spread upon the record, but had a red line drawn through the same upon the record book. The fact that such an acknowledgment was upon the record of Stoddard county was omitted from the bill of exceptions presented to this court upon the former appeal. The defendants then offered in evidence mesne conveyances from Frederick Wolfenden, trustee, to Olivia Butterfield and John Abbott, duly recorded in the recorder’s office of Stoddard county, April 19, 1889. Defendants then offered in evidence a deed from Olivia Butterfield and husband to Láwrence Morrison duly recorded in Stoddard county on the 19th of June, 1902, and offered a general warranty deed from John H. Morrison to John J. Hobson and Emma L. Hobson his wife, duly recorded in the recorder’s office of Stoddard county the 2nd day of February, 1903, and also a deed from the said Hob-son and wife to Darby. The defendant then offered in evidence the original warranty deed from Henry Bohlcke and wife to Frederick Wolfenden filed for record in the recorder’s office in Stoddard county, Missouri, on the 11th day of January, 1889, together with the certificates of acknowledgment and recording endorsed thereon, from which it appeared that in addition to the acknowledgment of Catherine Bohlcke, the wife of said Henry Bohlcke, taken on the 13th of December, 1888, before Charles. E. Stokes, notary public of Stoddard county, Missouri, there was also an acknowledgment of the said Henry Bohlcke in due form taken on the 15th of December, 1888, before Daniel Haynes, a notary public of Dunklin county; and attached to this deed is also a certificate of the recorder of Stoddard county, that the said instrument was on the 11th day of January, 1889', duly filed for record in his office and was duly recorded in the records of said office in book number 8, page 62. There was and is no erasure or line drawn through this acknowledgment of Henry Bohlcke in this original deed.

In offering this original deed from Bohlcke and wife, the defendants first accounted for its production by the testimony of Mr. Dempsey. He had not been of counsel in the case until long after the first trial and after the case had been pending in this court, for some time. When the judgment was reversed and the cause remanded for a new trial, Mr. Dempsey set about finding the witness, Francis J. Peters, with a view to have him testify more definitely as to the acknowledgment of the deed from Bohlcke and wife to Wolfenden. He finally ascertained that Peters resided at Texarkana, and went to see him, and learned that Peters had found the original deed while looking over some old papers for another deed and had sent it to Messrs. Russell & Russell, who were of counsel in the first trial. With this information, Mr. Dempsey went to Charleston, Missouri, and obtained the original deed from Mr. Clark Russell. Thus its absence on the first trial was fully and satisfactorily accounted for. Moreover, after the decision by Judge Deering, and in the course of the preparation of the bill of exceptions, Mr. Russell informed Mr. Young, attorney for plaintiff, that he had since the trial obtained possession of the original deed from Henry Bohlcke and wife to Frederick Wolfenden, dated December 13, 1888; and it- was agreed upon between Mr. Russell and Mr. Young that, inasmuch as this original deed showed that a consideration was expressed therein, and the name of the grantee inserted therein, and the acknowledgment of Henry Bohlcke appearing thereon in due form of law, the bill of exceptions as prepared should be amended by striking out all such portions of the testimony of Henry Bohlcke that conflicted with these facts so as to prevent making a permanent record against Mr. Bohlckle of having testified to facts that were contradicted by the original, and that such mistakes or errors of testimony were to be stricken out of the record, Mr. Russell agreeing to send Mr. Young a copy of this deed to be inserted in the abstract of record upon which this case was presented to the Supreme Court on the first appeal; that by some mistake or error Mr. Russell sent a copy of the deed from Bohlcke and wife to Wolfenden dated April 8, 1889, conveying lands in section twenty-nine instead of the deed of December 13, 1888, conveying section eleven, and that witness either did not discover the mistake, or failed to notify Mr. Russell of his mistake, and inserted in the abstract of the record this deed for land in section twenty-nine, and witness further admitted that he failed to eliminate from the abstract and record the portions of testimony agreed upon. Mr. Russell did not appear for respondent in the hearing of this case in this court on the former appeal, and the abstract of the record was not corrected in the particulars hereinabove set out.

At page 81 of the abstract the witness says:

“Me. Roziee: Judge Dempsey testified that at the time he obtained the deed out of Judge Russell’s office he got two deeds, one conveying the property described in the deed offered in evidence and also another deed between the same parties to section twenty-nine: we want to offer it in evidence to show that Mr. Russell must have sent the wrong deed, and that Mr. Young never discovered the mistake until the case was passed upon. I will ask Mr. Young if that is not correct? Ans. Yes, sir.”
“By Me. Claedv: Q. I thought it was this deed he sent you a copy of, from Mr. Bohlcke to Wolfenden? A. He intended to send me a copy of that deed, but he sent me a copy of the other deed.”

I. The circuit court found all the issues for ¿he defendants.

While Bohlcke evidently obtained nothing of value from Wolfenden, or Wood the beneficiary, the circuit court was fully justified in finding that Abbott and Mrs. Butterfield had no knowledge of the fraud, if any, practiced upon Bohlcke and they and their grantees were unaffected thereby, and were purchasers for value, in good faith and without notice of said fraud. On the former appeal it was held that the one vital proposition upon the record as it then stood, was, “was the record of the deed from Bohlcke and wife to Wolfenden to the lands in suit, admissible in evidence, for tbe purpose of fixing constructive notice upon plaintiff, of the conveyance of this land prior to plaintiff’s purchase ?” As the record in this court then appeared, there was no certificate of acknowledgment by Henry Bohlcke, the grantor on said deed. It was held and we still think correctly, that by reason of the absence of said acknowledgment, said deed was not entitled to be recorded under section 2418, Eevised Statutes 1889, nor did it fall within the class of instruments provided for in section 3118, Revised Statutes 1899; because not recorded a year prior to the act of 1887, Laws 1887, page 183. [Geer v. Lumber & Mining Co., 134 Mo. l. c. 94; Williams v. Butterfield, 182 Mo. 181; Bishop v. Schneider, 46 Mo. 472.] The record now before us discloses that the record of deeds of Stoddard county shows on its face a proper acknowledgment of said deed by Henry Bohlcke, but a line in red ink is drawn through said acknowledgment. By whom and when this line was drawn is uncertain. The recorder of deeds had no recollection of drawing the line through the acknowledgment, and testified that it was the custom of the office to draw lines through blank forms which had not been filled, the books having been prepared for certain blank forms of deeds. He also testified that the law required (sec, 9068, E. S. 1899), and it was his custom, to note on the margin any erasures, interlineations or defects he discovered in the instruments filed for record. The abstract firm who kept an abstract of deeds made no note of any defect in the acknowledgment or erasure thereof, though this was their custom and duty, and the gentlemen who made plaintiff’s abstract knew nothing of the line through Bohlcke’s acknowledgment until the first trial of this ease. It appears moreover that when the attention of the abstracter was directed to his abstract on which plaintiff purchased, he called attention in his testimony on the first trial, to the fact, that Ms certificate covered an abstract of fourteen pages inclusive, and the abstract showed to him contained only ten pages. But the original deed itself leaves absolutely no ground to question that when it was filed and recorded,, there was no line drawn through Bohlcke’s acknowledgment. That the deed was entitled to be recordad and was recorded with that certificate attached, and so certified by the recorder as the law required, there can be no doubt. So that the pivotal question in this case is whether defendants are to lose their title because some one either fraudulently or carelessly had without right or authority * drawn this line of red ink through Bohlcke’s acknowledgment after the deed with said acknowledgment to it had been filed for record and certified. If so men’s titles hang upon slender threads.

The controversy is between two innocent parties. The defendants derive their title by regular formal conveyance from Bohlcke. When Abbott and Mrs. Butterfield bought this land of Bohlcke they obtained a warranty deed duly and properly acknowledged by Bohlcke and wife and they proceeded at once to give notice to the world of their title thus obtained by promptly filing the same for record, and in due time the deed was recorded with the certificates of acknowledgment thereon, and the recorder of deeds appended his certificate of the record to the deed and delivered it to the agent of the grantees. In a word, they did all that the most prudent person would have done in like circumstances. They filed the deed for record and paid the recording fee and received a certificate that it -had been duly recorded. Can it be said thát in order to protect their title against subsequent purchasers, they should from time to time have gone to the recorder’s office and examined the record to see if the deed was in fact recorded and had not been tarnpered with or altered by some one without authority, by the drawing of a line through the acknowledgment? We think no such extraordinary conduct was or is demanded by the law. They had done all that prudence and diligence dictated. Had they been guilty of any negligence the maxim that “where one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it, ’ ’ might be invoked. But we are unable to discern where Abbott and Mrs. Butterfield were in any respect negligent or at fault. On the other hand, when plaintiff contemplated buying the land in suit, he was chargeable with notice of the record of deeds in the chain of title. It is true he testifies he never saw the record of this deed but relied upon his abstract, but the testimony of Mr. Reddick, the examiner of titles, shows that the abstract books of Mr. Buchanan, for whom the witness was working, did not show any want of Bohlcke’s acknowledgment, or other defect in the deed, and that the abstract furnished the plaintiff contained fourteen pages, and they certified to the condition of the title as found in those fourteen pages, but when this abstract was shown to witness on the former trial, it contained only ten pages. Now would not a prtident man have at bnce inquired what had become of the other four sheets of the abstract? and if he had, it would have caused an examination of the abstracter’s books, which would have revealed that this deed from Bohlcke and wife to Mrs. Butterfield and Abbott was without any intimation of any defect or want of acknowledgment, and if then he had gone to the recorder he would have found the acknowledgment of Bohlcke, but with the line drawn through it, enough however to put any prudent man on the inquiry, and an inquiry in good faith as to when and by whom and by what authority this line had been drawn would have shown that this red line was drawn without authority or at least carelessly by some one in the office, and that the deed was regular in all respects and that Bohlcke had no title to convey to plaintiff. This, however, was not done. We have no doubt of the good faith of plaintiff in purchasing the land, and a judgment denying him the title was a hardship, but a contrary ruling would operate to deprive defendants, who hold a prior deed, in equal good faith, to their land without the slightest fault on their part. Surely no such conclusion ought to be reached, if it can be avoided without a reproach to our system of the administration of justice.

Had the court house burned down and the record book been totally destroyed no doubt whatever exists that under our decisions the defendants could have shown by parol that their deed had been acknowledged by Bohlcke and recorded, and notwithstanding the destruction of the record they would have been protected for their deed had been recorded. [Crane v. Dameron, 98 Mo. 567.] Or if the deed had been partially destroyed, they could have supplied the lost part of the record by parol evidence and plaintiff would have been charged with constructive notice of said deed, as its partial destruction would not affect the grantee’s right. [Addis v. Graham, 88 Mo. 197; Geer v. Lumber & Mining Co., 134 Mo. 85.]

If a subsequent purchaser under our statute, section 924, Revised Statutes 1899, is charged with constructive notice of a. deed properly acknowledged and recorded, even though the record was entirely destroyed, and the fact that it was acknowledged and recorded can be established by parol evidence, if the original be lost, why, if a deed had been properly acknowledged and filed for record and recorded and this record after-wards be mutilated by some unauthorized third person by drawing a line through the acknowledgment, or even if the spoliation has occurred by the carelessness of the recorder or his deputy, may not the innocent and diligent grantee in that deed offer not merely secondary parol evidence as to the condition of the deed when filed and recorded, but the original deed itself with the acknowledgment thereon' and the certificate of record on it, and thus prove to the court by the best primary evidence that his deed was not only duly acknowledged, but was filed for record without a mark or erasure or spoliation on it, and was in fact thus recorded, and that perforce in the very nature of things the unauthorized spoliation and mutilation had occurred after his deed had been properly recorded and returned to-him with the certificate of record thereon, and had been abstracted before such spoliation had taken place? We think that reason and authority both concur in holding that defendants had a perfect right to establish by their deed and the acknowledgment thereon and the certificate of record, that it had been duly recorded, and when they did this it was constructive notice to plaintiff, notwithstanding the unauthorized spoliation of the record after it had been recorded. If they could not, then the decisions in the cases noted where the records were burned were wrong. We think those cases were properly decided and an unauthorized spoliation and mutilation can have no more effect to destroy the effect of the recording than the total destruction did. Men’s, titles ought not to be taken from them by the unauthorized acts of third parties, even though such party be. a recorder or deputy recorder and his act a careless one.

But it is earnestly insisted by the counsel for plaintiff that the original deed of Bohlcke and wife to Abbott and Mrs. Butterfield and the certified copy of the deed record showing Bohlcke’s acknowledgment on the deed when filed for record, are wholly inadmissible for the reason that on the former appeal (182 Mo. 181) this court adjudged that the record of said deed imparted no notice to plaintiff because it was not entitled to be recorded and when the cause was remanded it was with directions to try one issue only, to-wit, to permit defendants to show if they could that plaintiff had actual knowledge of the deed to Wolfenden. The concluding words of the opinion on the former appeal are: “That defendant may have an opportunity of introducing any other evidence in this cause, and showing that plaintiff had actual notice of the former conveyance by Bohlcke and wife to Wolfenden, the judgment in this cause, for the errors indicated herein, will be reversed and the cause remanded.” Counsel have misapprehended the judgment of this court. It did not direct the circuit court to render a specific judgment as was the case in State ex rel. v. Edwards, 144 Mo. 470, and Tourville v. Railroad, 148 Mo. 623, and other cases in this court. The judgment of the circuit court was reversed and the cause remanded for a new trial for the sole reason that the circuit .court had admitted in evidence as constructive notice to plaintiff the deed from Bohlcke and wife, which as it then appeared to this court had no certificate of an acknowledgment by Bohlcke on it or attached to it.

The circuit court having admitted that record and held that it imparted notice in that condition, it was not necessary for defendants to do more, but when we reversed that judgment for that error, we decided no more than that the deed without an acknowledgment was not entitled to record under section 2418, Revised Statutes 1889, and did not fall within the class of instruments contemplated by section 3118, Revised Statutes 1899. We rendered no judgment in this court for plaintiff, nor directed any to be entered for him by the circuit court. On the contrary, in directing a new trial, we particularly awarded defendant the right to “introduce any other evidence in this cause,” and to “show that plaintiff had actual notice of the former conveyance.” It was not our purpose to .preclude a full trial of the cause anew. The effect of our judgment was that if on a new trial defendant could only show the record of a deed from Bohlcke and wife, which had no certificate of acknowledgment by Bohlcke, then of course the circuit court would accept the opinion of this court on that state of case and exclude said record of said deed because it was not entitled to record and hence not constructive notice to plaintiff, but we did not rule that defendant might not introduce the original deed with the acknowledgment on it duly certified by the recorder of deeds. Nor that defendants could not show the record itself disclosed the existence of such acknowledgment. No such question was presented to us and the transcript furnished no ground for any decision on those questions. Counsel it seems had inadvertently omitted to bring the whole page of the record to our attention in their bill of exceptions. On the. new trial a different state of facts was developed, and the trial court was bound to apply the law to the new state of facts and was hound only by our decision on the former appeal to the extent that if the same state of facts appeared, it would follow our decision. But we do not care to extend the discussion of this point further, inasmuch as this court has on many occasions reviewed our own decisions on second appeals, where no hardship would result to innocent parties, and reached different conclusions as to the law itself as well as the facts of a case. [Wilson v. Beckwith, 140 Mo. 359; Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131.]

It need only be added that Bohlcke’s evidence on the former trial was completely rebutted and destroyed as to the blanks for the consideration and the name ■of the grantee being unfilled. The circuit court had ample evidence to justify it in finding against plaintiff on that branch of the ease, and properly admitted the original deed and acknowledgment and the certificate of the recorder of its record. The judgment accordingly is affirmed.

All concur.