text:
    ANNA CAMPBELL, Appellant, v. AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT.
    Division Two,
    June 4, 1920.
    1. LEX LOCI: Accident Insurance. The insurance policies having been issued and delivered in California, and the insured being at all times a resident of that state, the law of California must be applied in construing the contracts.
    2. ACCIDENT INSUEANCE: Necessary Showing: .Strain. .In a suit on an accident insurance policy governed by the law of California, the burden is on plaintiff to prove that, the insured’s death was caused by (a) the incident depended upon; (b) that the movement or strain of the deceased which caused the rupture in his liver ' from which he bled to death was not intentional but accidental; and (c) that this accidental injury resulted in death “directly and independently of all other causes” as that phrase is construed in that state; and though the evidence seems sufficient to establish the first two, unless it is sufficient to establish the third a demurrer to the evidence should be sustained.
    3. -: Independently of All Other Causes. Under the California law, death is not the result of bodily injury sustained through accidental means “directly and independently of all other causes,” where the insured, who was afflicted with cancer of the liver, died from blood hemorrhage caused by a rupture of the malignant tumor produced by a strenuous exertion or violent strain in at- . tempting to recover a ball on golf links. If at the time the insured sustained the accident he was afflicted with a pre-existing disease, and the accident would not have caused his death had he not been afflicted with the disease, but he died because the accident aggravated the effects of the disease, or the disease accelerated the effects . of the accident, under the law of California, the- accidental injury did not result in his death “directly and independently of all other causes.” Under that law there can be no recovery on an accident policy containing those words for death caused partly by accident and partly by disease.
    4. --: California Law: Subsequent Decisions. The Supreme Court has a right to consider the later decisions of California construing the decisions of that state put in evidence in the trial of the case.
    Appeal from St. Louis City Circuit Court. — Eon. Kent K. Koerner, Judge.
    Affirmed.

      Bryan, Williams & Gave for appellant.
    (1) The court erred in directing a verdict for the defendant. (a) There is evidence tending to show that the rupture of the liver, the consequent hemorrhage, and death, was caused by the unusual and unintended exertion of the insured in the golf game. That it was so caused plaintiff is not required to prove by direct proof, but this may be inferred from the facts and the circumstances, and from opinion of experts. And there is some probative force in mere sequence, without the intervention of independent causes, irrespective of the time which elapses between cause and effect. Laessig v. Travelers ’ Protective Assn., 169 Mo. 272, 11 C. J. 36; Driskell v. Ins. Co., 117 Mo. App. 362; McDonald v. Railroad, 219 Mo. 468. (b) The evidence is sufficient to take the case to the jury on the question as to whether these exertions caused the rupture, followed by the hemorrhage and death. Fetter v. Fidelity Co., 174 Mo. 256; Summers v. Fidelity Assn., 84 Mo. App. 605; Johnson v. Casualty Co., 122 Mo. App. 369; Young v. Ry., 113 Mo. App. 636; Hooper v. Ins. Co., 166 Mo. App. 2'09; Goodes v. Order United Comm. Travelers, 174 Mo. App: 330. (c) Such unusual and unintended exertions were “accidental means,” within the terms of the policies under the Missouri decisions, which hold that an injury is accidental when the effect produced is not the natural and probable consequences of the means which produced it. Fetter v. Casualty Co., 174 Mo. 256; Summers v. Fidelity Assn., 84 Mo. App. 605; Driskell v. Ins. Co., 117 Mo. App. 362; Johnson v. Casualty Co., 122 Mo. App. 371; Young v. Ry. Mail Assn., 126 Mo. App. 335; Beile v. Protective Assn., 155 Mo. App. 629; Hooper v. Ins. Co., 166 Mo. App. 209; Goodes v. Order United Comm. Travelers, 174 Mo. App. 330; Wright v. Order United Comm. Travelers, 188 Mo. App. 457; Greenlee v. Casualty Co., 192 Mo. App. 303; Freeman v. Ins. Co., 195 S. W. 545. They are likewise “accidental means” under the California decisions'which hold that an injury is caused by “accidental means ’ ’ when there is some element of unexpectedness in the event which preceded the injury. Rock v. Ins. Co., 172 Cal. 462; Price.v. Ins. Co., 169 Cal. 800. (d) The fact that the rupture would not have happened, but for the diseased condition of the insured, does not, under the Missouri decisions, make the disease the proximate cause of the death, and the accident remains the sole cause within the provisions of the policy. Fetters v. Casualty Co., 174 Mo. 256; Summers v. Fidelity Assn., 84 Mo. App. 605; Driskell v. Ins. Co., 117 Mo. App. 362{; Johnson v. Casualty Co., 122 Mo. App. 369; Young v. Ry. Mail Assn., 126 Mo. App. 325; Beile v. Protective Assn., 155 Mo. App. 629 ; Baehr v. Casualty & Surety Co., 133 Mo. App. 541; Hooper v. Ins. Co., 166 Mo. App. 209; Goodes v. Order United Comm. Travelers, 174 Mo, App. 330; Greenlee v. Casualty Co., 192 Mo. App. 303. The California cases offered in evidence do not hold otherwise.

      Jones, Hooker, Sullivan & Angert for respondent.
    (1) The policies in suit having been delivered to and accepted, by the insured in the State of California, of which state the insured was a citizen and resident, they are California contracts and are governed by the law of that state. Lukens v. Ins. Co., 269 Mo. 574. (2) Under the law of California an injury which is the result of an intended act on the part of the insured is not effected through "accidental means.” Rock v. Travelers’ Ins. Co., 172 Cal. 462, 156 Pac. 1029; Price v. Occidental Ins. Co., 169 Cal.-800,147 Pac. 1175. (3) The burden of proof was upon the plaintiff to establish that the rupture of the tumor with which the insured was afflicted was sustained through accidental means. Price v. Occidental 'Ins. Co., 169 Cal. 800, 147 Pac. 1175; Laessig v. Travelers’ Ins. Co., 169 Mo. 279; Brunswick v. Ins. Co., 213 S. W. 45. (4) The insurer is not liable where the injury might have been the result of two or more causes, for one of which the insurer would be liable, and for the other of which the insurer would not be liable. Coin v. Lounge Co., 222 Mo. 488; Ins. Co. v. Murray, 90 S. E. 620; Carnes v. .Iowa St. Traveling Men’s Assn., 106 Iowa, 281. (5) Under the law of California there is no liability on the part of ■ the insurer where a pre-existing disease contributes to or co.-operates with .an accidental injury to produce death. Clarke v. Casualty Co., 179 Pac. 195; Kellner v. Travelers.’ Ins. Co., 181 Pac. 61; Price v. Occidental Ins. Co., 169 Cal. 800.
   WHITE, C.

This suit is brought to collect insurance on the life of plaintiff’s deceased husband, Joseph C. Campbell. The petition filed in the Circuit Court of the City of St. Louis is in two counts, each based upon, an accident policy which contains the usual stipulation in accident policies, as follows:

“Against loss, as herein defined, resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means, suicide (sane or insane) not included.”

The answer in each count contains a general denial, and for a further defense alleges that Joseph C. Campbell was, at the time of the issuance and execution of each of the policies mentioned in the petition, a citizen of the State of California, and continued so at all times until his death; and that each of the policies mentioned in the petition became operative and in force in California and every premium was paid in California: that there was in force in the State of California the following statute:

“Sec. 4468. The common law of England, so far as' it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State. ’ ’

The answer then proceeds:

“And that at the time of the death of the said Joseph C. Campbell he was afflicted with cirrhosis of the liver, cancer of the liver and a cancerous tumor of the liver; that the immediate cause of his death was hemorrhage resulting from a rupture of said cancerous tumor; that if the insured suffered any accidental occurrence which contributed to cause said rupture (which the defendant denies), nevertheless said cirrhosis, cancer ánd cancerous tumor also directly contributed thereto.”

The allegation follows that under the law of California the manner of the insured’s death was not accidental within the meaning of the policies.

Campbell died at San Francisco July 1, 1915, at the age of sixty-three years. He was a lawyer with a large practice. On June 4th, preceding his death. his son Robert Campbell, arrived from Chicago on a visit to San Francisco. Saturday, June 5th, Joseph Campbell and his son played golf in the forenoon. The insured played hard, he was a strenuous player and strenuous in everything he undertook; he strained hard in making his strokes, was , awkward about it— an inexperienced player. On Sunday forenoon, June 6th, Campbell and his son again played golf, eighteen holes. After they had played to about the middle of the second nine, Campbell’s ball lodged in a bunker toward the top. He took his mashie and stepped up to the side of the bunker to make a stroke and was thrown off his balance by catching his foot in something, so that he almost fell, but by a violent effort recovered his balance and continued the game. After the game he took the usual shower and went home with his son without making any complaint. The next morning, Monday, June 7, he went to his office as usual, still making no complaint. The son returned Monday afternoon and found his father at home lying on a settee. A doctor was called. Campbell complained of distention of the stomach; for three or four days he was in bed and lounged around the house. On Wednesday, June 9th, his abdomen became very much distended; his physician introduced a canula in the lower part of his abdomen and drew off eight quarts of fluid, 15' per cent blood. This operation was repeated three or four times until about forty quarts of fluid were drawn off. Campbell continued to grow weaker > from day to day and finally died July first. An autopsy showed .that his aorta and arterial circulatory system was diseased, but not seriously; his pancreas was shrunken and atrophied; the spleen considerably enlarged, twice its normal size; his liver was contracted to one-half or three-fourths its normal size; there was cirrhosis of the liver, and on the right lobe was a tumor about four inches in its greatest diameter; it is described as a primary carcinoma — cancer of the liver, a malignant tumor. This tumor showed necrosis; on it was a nodnle projecting sufficiently to cause friction against the adjacent parts of the body in case of movement; a piece of this projecting nodule was broken off, and that rupture, in the opinion of the physicians, caused insured to bleed to death.' No other disturbance or condition of the internal organs was apparent to account for the hemorrhages.

The defendant introduced in evidence two California decisions: Rock v. Travelers’ Insurance Co., 172 Cal. 462-468; Price v. Insurance Company, 169 California, 800 to 803. The plaintiff in rebuttal offered a number of California decisions. Upon this evidence the court instructed the jury that under the law of the State of California as applied to the case plaintiff was not entitled to recover and directed a virdict for defendant. The verdict was accordingly returned and judgment rendered for the defendant, from which the plaintiff appealed to this court.

california Law

I. The policies having been issued and delivered in the State of California, of which State the insured was a resident at all times, the law of California must be applied in the construction of the contracts.

Three principal propositions are formulated by the respondent, claiming either to be sufficient to defeat recovery.

First, that there is no sufficient proof that the rupture and consequent hemorrhage which caused death was the result of the strain in the golf game when the deceased attempted to get his ball off the bunker.

Second, the rupture, if caused by the exertion at that time was not through “accidental means;” ana, under the law of California as shown by the decisions introduced in evidence, the exertion which produced the rupture, if it was so produced, was an intended act and not an accidental one within the meaning of the policy.

Third, under the law of California there is no liability on the part of the insured against accidents where pre-existing disease contributes to or cooperates with an accidental injury to produce the injury. In this case a cancer of the liver was a pre-existing disease and a contributing cause; therefore the death was not “effected solely” through the accident.

Under the law of California there is no doubt that the burden was on the plaintiff to prove the death was caused by, (a) the incident in the bunker;- (b) that the movement, effort or strain of the deceased which caused the rupture was not intentional but accidental; and (c) that this accidental injury resulted in death “directly and independently of all other causes” as that phrase is understood and construed by the California court.

If the plaintiff has failed to establish either one of the above propositions the demurrer to the evidence wras properly sustained. Without determining, we may say it seems that the first two were sufficiently established; that there was sufficient evidence to go to the jury tending* to show the rupture and hemorrhage were caused by the strain on the golf links, and that the exertion of the deceased to recover his balance was accidental and not an intentional movement.

Meansntal

II. It remains then to inquire whether the death was produced by that accident “independently of all other causes.” That the rupture was the immediate cause of the insured’s death there is no doubt, and that the rupture would not have occurred but for the existence of the cancerous tumor is equally certain.

Under the Missouri decisions, if the rulings in Missouri should be applied, there is no doubt but the evidence was sufficient to submit that issue to the jury. [Fetter v. Fidelity & Casualty Co., 174 Mo. 256, l. c. 267; Beile v. Protective Assn., 155 Mo. App. 629, l. c. 646; Young v. Railway Mail Assn., 126 Mo. App. 325.]

It was said in the Beile case: “The fact that the physical infirmity of the victim may be a necessary condition to the result does not deprive the injury of its distinction as the sole producing cause. ’ ’

Accident insurance, so far as the record in this case shows, is issued without regard or inquiry as to the physical condition of the insured, whether it is one which makes him more susceptible- to a certain class of accidents than ordinary or not. An accident policy is issued to a one-legged man the same as to one who has two legs, although he may be likely to receive injury from some kinds of accidents which a two-legged man would not so easily incur. It is not shown that knowledge by the insurer of the existence of .a cancerous liver would have prevented the issuance of the policies, although that condition necessarily made insured more susceptible to certain kinds of accidental injury; for Instance, the injury which he actually received. .The accident which thereafter produced his death is exactly what the contract insures against, whatever the conditions of the insured may have been which made the injury possible. Such is the Missouri rule. The Missouri rule is mentioned here because cited and disapproved by the California courts.

Since the law of California must apply to the case it is necessary to ascertain just what the common law rule in California is in construing contracts of this character.

In the case of Price v. Occidental Life Ins. Co., introduced in evidence by the defendant, the court said, 169 Cal. 80-2: “In order to recover, the plaintiff was bound to allege and prove an injury of the kind covered by the contract.”

And in the case of Rock v. Travelers’ Ins. Co., 172 Cal. l. c. 466, the court makes the following statement as the approved rule in that state:

“We shall not take the time to review in detail the facts of the cases we have cited. It will suffice to say, by way of illustration, that among them are decisions holding that death was not the result of bodily injury sustained through accidental means where an insured who was afflicted with tuberculosis died from a hemorrhage occasioned by a ruptured artery, the rupture of the artery being due to the act of the insured in standing on a chair and reaching out to close the shutter of a window (Feder v. Iowa State Assn., 107 Iowa, 538, 70 Am. St. 212, 43 L. R. A. 693, 78 N. W. 252), or where the insured, convalescing from an attack of pneumonia, arose, and in attempting to remove his nightshirt made a more or less violent effort, which caused the rupture of a blood vessel resulting in his death (Smouse v. Iowa State Assn., supra), or where the insured died of appendicitis, caused, as the evidence tended to show, by his riding a bicycle over a rough road (Appel v. Aetna Life Ins. Co., 86 App. Div. 83, 83 N. Y. Supp. 238), or where the insured went to Colorado Springs and ascended the stairs of a hotel carrying in each hand a traveling bag, his- death resulting from paralysis of the heart caused by the high altitude and the. strain of his exertions. [Schmid v. Indiana Assn., 42 Ind. App. 483, 85 N. E. 1032.]

In this connection the court cites some Missouri cases including the Beile case, supra, and distinctly repudiates the Missouri doctrine.

It may be said that the Price case and the Rock case introduced in evidence turn upon the question as to whether the death of insured was through ‘ ‘ accidental means” and not in construing the phrase “independently of all other causes.” Nevertheless the statement quoted from the Rock case shows the general principle announced by that court as applied to the latter proposition.

The court in the Price case cites with approval the case of National Masonic Acc. Assn. v. Shryock, 73 Fed. 774, in support of the position taken, so that the Shryock case must be understood as expressing the proper rule to be followed by the courts of California; where the opinion says, l. c. 775-776:

“The burden of proof was upon the defendant in error to establish the facts that William B. Shryock sustained an .accident, and that that accident was the sole cause of his death independently of all other causes. If Shryock suffered such an accident, and his death was caused by that alone, the association agreed by this certificate to pay the promised idemnity. But if he was affected, with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with' the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated the effects of the accident, the express contract was that the association should not be liable for the amount of this insurance. The death in such a case would, not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the association from liability therefor.”

The Price case and the Rock case have been cited and construed by later decisions of the California Supreme Court. In Kellner v. Travelers’ Ins. Co., 181 Pac. 61, the court holds, citing the Rock and Price cases, l. c. 63, that the burden is on the plaintiff to prove that the injury and the death were caused by an accident independently of any disease or ■ diseased condition. Kellner, the insured, had had an operation for appendi-. citis and two subsequent operations for hernia. He tripped on a rug in his office and fell, producing strangulated hernia from which he died in a short time. One physician testified that the fall forced a large part of the intestine through the weak spot in the abdominal wall so as to become strangulated and cause his death; another physician testified that there must have been a hernia sac existing before the time of the accident; that the fall alone could not have produced the result at the time. That issue was submitted to the jury on that evidence and the jury found for the defendant. The judgment was affirmed.

An instruction was asked by plaintiff to the effect that if the jury “believed the fall was the ‘sole and only direct cause’ of Mr. Kellner’s death, they must find for the plaintiff, notwithstanding a further belief that in previous years deceased may have had a reducible hernia, provided they further find that ‘said Ernest F. Kellner would not have died at the time, under the circumstances, and in the manner he did die had it not been for said accident and fall.’” (L. c. 62.) This instruction, the court held, did not properly declare the law, and said:

“The last part of the offered instruction would ignore this part of the contract and make the criterion of recovery the shortening by - the accident of the life of a person assured without any reference to the possible concurrence of disease in producing death. The court correctly instructed the jury that there could be no recovery under the policy for death caused partly by disease and partly by accidental injury.”

The Supreme Court of California also in the case of Clarke v. New Amsterdam Casualty Co., 179 Pac. 195, passed upon this same- question. In that case Clarke, the insured, while crossing a street was struck by an automobile and incurred severe concussion of the brain. He was later operated upon for appendicitis and died in about a month. The immediate cause of his death was a disease of the heart, acute myocarditis. There was a verdict for the plaintiff and the judgment was affirmed; but the court in considering the law of the case said, l. c. 196: “The court instructed the jury that if disease plays a part in the death of an assured person after an accident, it is essential to recovery that such disease was due to the accident.” This was held to be a correct instruction. And further the jury were instructed; “If you shall find that the death was caused in part by the heart disease, and that this heart disease was not in fact caused by this accident, your verdict must be for the defendant.” And this was held to state the rule correctly. There was evidence by physicians to the effect that the heart disease was due to the lowered resistance' caused by the concussion of the brain; that is, it was caused directly by the accident. I;n further commenting upon it, after citing a,Federal case, the court said., l. c. 197:

. “In that case the jurors were told, in effect, that although death might have resulted from two concurring causes — one being the injury and the other being pre-existing diabetes — the plaintiff would nevertheless be entitled to recover. This, very properly, was held to be error. But in the present case the theory of the plaintiff, supported by the testimony which the jurors are entitled to accept, was that no heart disease existed before the accident, and that both appendicitis and myocarditis were the result of the injury itself.”

The court further said on page 198:

“Undoubtedly, death from any independent cause, whether existing prior to or. supervening at a time subsequent to the accident, would defeat the claim of plaintiff, but the instruction was dealing with one phase of the problem, merely, the existence or nonexistence of disease prior to the accident.”

Appellant objects to a consideration of the decision in the Kellner case and the Clarke case, because they were not introduced in evidence, and would have us reverse the judgment and remand the case for trial so that the defendant upon another trial could introduce them in evidence when the court would again have to direct a nonsuit.

While it may be said that the Price case and the Rock case are not as clear as they might be in expressing the rule subsequently stated by the California Supreme Court, still by reference to the Federal case cited and approved, the rule may be very well ascertained from those cases. This court has a right to consider the later decisions of the California Supreme Court in construing the cases which were offered in evidence.

' In each of 'those later cases the issues were submitted to a jury because there was a conflict of evidence as to whether the pre-existing disease contributed to the death and whether in fact there was a pre-existing disease. In the present case there is no question of the existence of the malignant tumor growing on the liver of Campbell, at the time of the accident. It is not contended that the fatal rupture without the existence of the tumor could have been caused by a strain of the kind mentioned in the evidence. In other words it is undisputed that Campbell would not have met his death by the hemorrhage and there would have been no hemorrhage if the cancer hadn’t been there; just as in the Kellner case there would have been no injury but for the existence of hernia, as the jury found. The only difference between the two cases is that the evidence was conflicting as to whether the hernia existed before the accident or was produced by it in the Kellner case; whereas, in this case, it is undisputed that the cancer existed before the accident. If it had been conceded in the Kellner case that there was hernia and . a protruding intestine at the time he stumbled upon the carpet, although death was immediately produced by the accident, there would have been nothing to submit to the jury. In the Clark case the issue was submitted to the jury because there was evidence pro and con as to whether the heart disease from which death ensued was caused by the accident and concussion of the brain or whether it existed before and was simply aggravated by that accident. Under the California rule it is clear that the plaintiff was not entitled to recover.

The judgment is affirmed.

Modey, G., concurs; 'Railey, G., not sitting.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: MOZLEY, C.

license: Public Domain

text:
    CITY OF ST. LOUIS v. SAMUEL MURTA, Appellant.
    Division Two,
    June 4, 1920.
    1. APPELLATE JURISDICTION: Misdemeanor: City of St. Louis. Since the City of St. Louis is a political sub-division of the State, the Supreme Court has jurisdiction of an appeal from a conviction of a defendant charged by an information filed by the city with a violation of its ordinances, though the offense is, only a misdemeanor.
    2. VALID ORDINANCE: Presumption. It cannot be presumed that the city, in enacting an ordinance, was ignorant of its charter powers, or that it deliberately intended to violate, either its charter or the statutes of the State; on the contrary, all doubt will be resolved in favor of the validity of an ordinance, and it will not be brought into conflict with either the charter or statutes by an expanded interpretation if such can be reasonably avoided.
    3. -: Lodging Houses: Unreasonable Restriction. An ordinance declaring that “the term ‘lodging house’ where used herein shall (unless expressly otherwise indicated) be taken to mean and to include any building wherein lodging and sleeping quarters for three or more persons in any one room are provided” will not be construed to include private homes, charitable institutions, etc-., and thus by interpretation be brought into conflict with the charter and statutes and thereby rendered void, but will be construed as not applying to private homes and charitable institutions, and is not therefore in conflict with the charter or statutes, nor when so restricted is it unreasonable.
    Appeal from the St. Louis City Circuit Court. — Mon, Ghauncey H. Krueger, Judge.
    Affirmied.

      Forest P. Tralles and Geo. 0. Durham for appellant.
    (1) The ordinance attempts to fix a tax upon establishments of a private character not pertaining to any business, calling, pursuit or vocation and is not authorized by the charter.. Charter of St. Louis, Art. 20; St. Louis v. Weitzel, 130 Mo. 619. Not being authorized by the charter it is void. State ex rel. v. Gordon, 217 Mo. 103; St. Lonis v. Kaime, 180 Mo. 309; State v. Butler, 178 Mo. 272. It is taxation and cannot he sustained as a police regulation. Lackey v. Kansas City, 169 Mo. App. 666. The legislative body of the city having defined the term “Lodging House,” this definition is exclusive. St. Louis v. Weitzel, 130 Mo. 600. (2) Even if the ordinance referred only to business establishments it would be void as not being a fair and reasonable classification and not applying to all alike. St. Louis v. Weitzel, 130 Mo. 600; State ex rel. v. Switzler, 143 Mo. 333. And is an arbitrary division of a single class, that of lodging house keepers, into two parts without any reason therefor and placing restrictions upon one of such parts and not upon the other, contrary to law. State ex rel. v. Kimmel, 256 Mo. 642; State v. Baskowitz, 250 Mo. 107.

      Oharlés H. Dames and H. A. Hamilton for respondent.
    (1) The city has power under its charter to impose a license tax upon any business, vocation, pursuit, calling, animal or thing. Charter, Art. I, sec. 1, par. 24. Also to regulate the construction and materials of all buildings and structures; and to inspect all buildings, lands and places as to their condition for health, cleanliness and safety, and, when necessary, prevent the use thereof, and require any alterations or changes necessary to make them healthful, clean and safe. Charter, Art. I, sec. 1, par. 29. Also to do all things whatsoever expedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufactures of the city or its inhabitants. Charter, Art. I, sec. 1. par. 33. Also to impose license taxes on all occupations, business, or callings, and the enumeration of certain occupations, business and callings does not impair the general power of the city to impose a license tax upon such pursuits as are not specifically enumerated. Charter, Art. XX; City of St. Louis v. Baskowitz, 273 Mo. 545. (2) Where the charter authorizes a thing to be done and an ordinance undertakes to carry out the power granted in the charter, the courts will lean to a construction which will uphold the ordinance. State v. Butler, 178 Mo. 311; St. Louis v. Weitzel, 130 Mo. 617. (3) When it is plainly perceivable that a particular intention, though not precisely expressed, must have been in the minds of the legislator, that intention will be enforced and carried out and made to strictly control. State ex rel. Mutual Life Ins. Co. v. King, 44 Mo. 285. Doubtful words in a statute will be enlarged, restricted, supplied, or even stricken out in order to make them conform to the true intent of the lawmakers, when such intent is manifested by the aid of sound principles of interpretation. State ex rel. v. Sheehan, 269 Mo. 427. (4) Laws public in their object may be confined to a particular class of persons, if they be general in their application to the class to which they apply, provided the distinction is not arbitrary but rests upon sound reasons of public policy growing out of the condition or business of such class. Allen v. Pioneer Press Co., 40 Minn. 120; State v. Baskowitz, 250 Mo. 90.
   MOZLEY, C.

There are three of these cases, and defendant was fined in each upon charges made by the city by information filed. The gravamen of the charges are that defendant operated three lodging houses in said city without paying a license tax and securing a permit from the proper authorities of said city authorizing him to do so. The cases were consolidated and tried as one upon an agreed statement of facts before Judge Krueger in the Court of Criminal Correction. What is here said, therefore, applies to .each case alike. The ordinances under which the cases proceed are 28790-29555. The agreed statement of facts upon which the cases were tried, so far as necessary to quote, provides as follows:

“Sec. 1. Lodging House — Definitions. The term <Lodging House’ where used herein shall, (unless expressly otherwise indicated) be taken-to mean and to include any building wherein lodging or sleeping quarters for three or more persons in any one room are provided.

“Second. That ordinances 28790-29555 were duly enacted and, if valid and constitutional, were in force at the times charged.

‘ ‘ Third. That defendant, Samuel Murta, did on May 18,1917, and at divers other days and times prior thereto, keep, conduct and operate three lodging houses in said city without a license or permit issued to him by the Board of Public Service of said city to keep any one of said three lodging houses.

“Fourth. That the defendant did not at any time apply for a permit or license to keep any of said three lodging houses as required by Ordinance 28790, and that he has not paid or offered to pay the annual fee provided for in section six of said ordinance.”

Jurisdiction,

The charges preferred by the informations amount merely to misdemeanors, but we take jurisdiction of the cases because the City of St. Louis is a political subdivision of the State. [Constitution, Art. 6, sec. 121; Straub v. City of St. Louis, 175 Mo. l. c. 414.]

The questions presented for determination are:

valid ordinance.

(a) Whether or not said ordinance applies to all buildings having a room where sleeping quarters are provided for three or more persons irrespective whether such room or building is operated as a business pursuit or a commercial establishment.

(b) Whether or not said ordinance’is void as being unreasonable and discriminatory and not a fair classification of the business of conducting lodging houses and not applicable alike to all engaged in such business, in that it singles out for purposes of taxation only such keepers as shall provide sleeping quarters for three or more guests in one room.

Is the ordinance in question subject to the objection made against it? Is it void because unreasonable?

Section 1 of the ordinance applies expressly and solely to lodging houses wherein lodging or sleeping quarters for three or more persons in any one room are provided. This application is provided for in the ordinance (unless expressly otherwise indicated) and it is nowhere otherwise indicated therein. But conceding all of this to be true does section one of said ordinance, when properly construed, affect its validity?

The crux of the cases is as to how said section ought to be construed. Appellant says it must be construed so as to include within its terms private homes, charitable institutions, etc., which, under the charter of' said city and the laws of the State-, are not subject to a license tax, hence rendering it void. Respondent, contra, contends that it was not intended to include private homes, charitable institutions, etc., and if thus construed the true intent of the legislative department of the city will be made clear.

It cannot be presumed that the city was ignorant of its charter powers or that it deliberately intended to violate the organic law of the State or city. [State ex rel. v. Sheehan, 269 Mo. l. c. 427; Straughan v. Meyers, 268 Mo. l. c. 591; State ex rel. Aull v. Field, 112 Mo. 554; Glaser v. Rothschild, 221 Mo. l. c. 211; Perry v. Strawbridge, 209 Mo. l. c. 645 ; 36 Cyc. 1106; Grimes v. Reynolds, 184 Mo. 679; Laclede Const. Co. v. Moss Tie Co., 185 Mo. l. c. 62; State ex rel. v. Public Service Comm., 270 Mo. l. c. 442.

In the case of. State ex rel. Sheehan, supra, it is said, by‘pur Court in Banc: “It is our duty to resolve all doubts in favor of the validity of a legislative act, and ■we are reluctant to declare such act invalid. We indulge the presumption that the Legislature did not intend to violate the organic, law of the State.” (Ex vi termini the same reluctance to declare an ordinance duly enacted, void, and the same presumption of its validity would obtain in the instant cases). In the same case and on the same page it is further said: “We have frequently said that doubtful words of a statute will be enlarged, restricted, supplied or even stricken out in order to make them conform to the true intent of the lawmakers, when such intention is manifested by the aid of sound principles of interpretation.”

In 36 Cyc. 1106, supra, it is said: “The great-fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature.”

The principle announced in the authorities quoted from and those cited, supra, is the established law of this State in construing legislative acts. We are of opinion that said ordinance is not susceptible of the interpretation contended for by appellant, since when interpreted in harmony with the powers possessed by the legislative department of the city no violence to or infringement upon the true meaning and intent of the lawmakers in adopting it exists. [State ex rel. v. Public Service Com., supra.]

We hold that said section does not include, and was not intended to include, private homes, charitable institutions, etc., and that it is valid and. harmonizes with the title to, and context of, said ordinance. The contention of appellant is overruled.

In the agreed statement of facts made in the lower court it is conceded that if said Section 1 of sáid ordinance is valid appellant is guilty of having violated it, by operating three lodging houses -in said city in defiance of the ordinance providing for the licensing and regulating of them.

No other complaint is raised and the information, trial, judgment and imposition of the fines appear from the record to be in all things regular, it only remains to-affirm said cases, which is done.

Let it be so ordered.

White, G., concurs; Rwiley, G., not sitting.

PER CURIAM: — The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WHITE, C.

text:
    THE STATE v. JAMES A. PLOTNER, Appellant.
    Division Two,
    June 4, 1920.
    1. FALSE ENTRIES: Bank Account: Statute: Necessary Elements: Information. To sustain a conviction under Section 4653, Revised Statutes 1909, five elements of the crime must be charged and proven: (a) an intent to defraud; (b) a false entry in a book of accounts kept by a corporation, by which (c) some pecuniary obligation or credit shall purport to be increased, diminished or discharged, or in some manner affected; (d) the book must be delivered, or must be intended to be delivered, (e) to some person dealing with the corporation. In this case the first three elements were properly alleged and established by sufficient proof; but the information does not allege that the bank delivered, or intended to deliver, the book to any person, or kept it for that purpose, and therefore the judgment is reversed.
    2. -: Delivery of Account Book. A delivery of the book of accounts to the officers of the bank, or the examining committee of its directors, does not constitute the delivery required by Section 4653, Revised Statutes 1909, for it requires that the book must be delivered, or intended to be -delivered, to some person “dealing with such corporation,” and the directors or other officers of the bank, acting for it, do not come within the designation; but a clearance house auditor, state bank examiner, or any stockholder or depositor is a “person dealing with the corporation” within the meaning of the statute.
    3. -: -: Inspection. A mere inspection or looking at a book of accounts kept by the bank is not a delivery of the book. To constitute delivery there must be at least a. temporary change of control or possession. ■ »
    4. -: -: Intention. The intention of a defendant, charged with making false entries in a bank book, or with causing such false entries to be made, in delivering said book, is immaterial. The words of the statute describing the book of accounts as one "delivered or intended to be delivered to any person dealing with the corporation,” refer to the intention of the corporation which owns the book — the purpose for which the book is kept.
    5. -: -:Intention to Defraud. The intention of the person making or causing to be made the false entries in the bank book must be to defraud, but it matters not against whom the intention would operate.

      6. -: Conspiracy: General Purpose or Scheme. What one conspirator does in carrying out the general purpose to defraud is the act of the other, even though they differ in unimportant details as to how the scheme shall he carried through. So that, where defendant instructed the bookkeeper of a bank to charge his checks to some depositor whose account would stand it, and in pursuance of that general purpose to defraud, the bookkeeper charged defendant’s checks to different persons through succes-. sive days, among others to Toller, but was told by defendant not to charge the particular check mentioned in the information to . Toller, but did so, nevertheless, because, upon inspection he thought Toller’s account would “stand it,” the crime against defendant is proven, the general purpose of the conspiracy being to obtain money by making false entries and concealing the acts.
    7. •-: -: Other Crimes. Evidence that numerous other checks drawn by defendant were charged to other depositors in the bank, in pursuance to the general purpose of the conspiracy to -defraud by false entries, is competent for the purpose of showing the intent with which the particular false entry was made.
    8. LIMITATIONS: Information Within Three Years: Amendment. Where an information charging false entries made in a bank book was filed four days before the three years after the crime was committed had expired, and later the State was by order of court given Ifeave to file an amended petition and did so, the case is not barred by limitations.
    9. FALSE ENTRIES: Applies to One Entry. The words “false entries” used in the statute applies to one entry, under the statute . (Sec. 8053, R. S. 1909) which says that the plural number includes the singular.
    Appeal from Jackson Circuit Court. — Ron. E. E. Porter-field, Judge.
    Reversed and remanded.

      Stubb.s & Stubbs and E. W. Sloan for appellant.
    (1) If. the making of the entry set out in the information was a crime, it was not defendant’s crime, but Kornfeldt’s, for all the evidence is that the entry was made in direct violation of defendant’s instructions. Bishop New Criminal Law (8 Ed.), sec. 637 and note; 1 Wharton on Criminal Law, sec. 647; State v. Lucas, 55 Iowa, 321; Watts v. State, 5 W. Ya. 532!; State v. May, 142 Mo» 152. (2) There was no intent to defraud. The entry was not made for such purpose, did not carry out, nor aid in effectuating such purpose, hut was for the purpose of making the hooks of the bank balance and tally; this for the purpose of preventing an investigation as to the manner in which the $200 loss had been sustained. (3) The book in which the entry was made was not delivered, nor intended to be delivered to any person dealing with the bank. (4) No pecuniary obligation, claim or credit was created, increased, diminished or discharged, or in any manner affected by the alleged false entry. (5) The information-does not state facts sufficient to constitute the offense undertaken to be charged, nor any offense whatsoever. (6) The court erred in admitting evidence of other transactions offered by the State for the purpose of establishing that the defendant committed other crimes. State v. Hyde, 234-Mo. 250; State v. Goetz, 34 Mo. 85; State v. Harrold, 38 Mo. 496; State v. Young, 119 Mo. 495; State v. Crosswhite, 130 Mo'. 358; State v. Turner, 76 Mo. 350. Evidence of other crimes is admissible only when tending to prove the one under investigation. State v. Jones, 171 Mo. 401; State v. Spaugh, 200 Mo. 571. (7) Even if the facts proved had constituted a violation of the statute in question, the offense was barred by the Statute of Limitations. The statute ' was not tolled by the first information. State v. English, 2 Mo. 147; State v. Duelos, 35 Mo. 237. Oral evidence will not be received to impeach-the verity of a solemn record. Gibson v. Chateau, 45 Mo. 171; Priest v. McMaster, 521 Mo. 60; State ex reí. v. Prim, Judge, 61 Mo. 170. (8) The statute cannot be violated by a single entry. The statute as originally passed, used the word “entry” in the singular. R. S. 1840, p. 187, sec. 18. In. 1845 the word “entry was changed to “entries.” R. S. 1845, sec. 18, p. 372. At the time the statute was amended sections-now numbered 8053 and 8055 were in force and effect and said amendment must be deemed to have been made in contemplation of said rules of construction, namely: That while in any statute words importing the plural number shall apply to any matter in the singular, yet such shall not be the construction where there is “something in the subject or context repugnant to such construction.” R. S. 1909, secs. 8053, 8055.
   WHITE, C.

The defendant was convicted in the Circuit Court of Jackson County, of-forgery in the third degree, in violation of Section 4653, Revised Statutes 1909, and appealed. The amended information on which he was tried (caption and signatures omitted) is as follows :

“Now comes Hunt C. Moore, prosecuting attorney for the State of Missouri, in and for the body of the County of Jackson, and upon his oath informs the court that John Edward Kornfeldt and James A. Plotner, whose Christian names in full are unknown to said prosecuting attorney, late of the county aforesaid, on the 14th day of September, 1914, at the County of Jackson, State of Missouri, did unlawfully and feloniously, conspire, combine and confederate with one another and together, with the felonious intent then and there to defraud the Mercantile Bank of Kansas City, Missouri, a moneyed corporation (existing under the laws of Missouri and engaged in the general banking business in the city of Kansas City, Jackson County, Missouri), and customers, depositors and patrons of said bank and corporation aforesaid, particularly one William H. Toller, of' the money and personal property of said bank, aforesaid, and its said customers, depositors and patrons, particularly said Toller, and in pursuance of and to effectuate their said unlawful and felonious intent and purpose, did then and there unlawfully and feloniously cause to be made. and. did make, a certain false entry and entries, in a certain book of accounts, then and there kept bv said bank, aforesaid, in which said book of accounts was then and there recorded and kept the accounts of said bank, aforesaid, with its customers, depositors and natrons, and particularly the account of the said William H. Toller, its customer, depositor and patron, as aforesaid, thus and thereby, unlawfully and feloniously by then and there making and entering the figures ‘200;’ did then and there add and enter a charge of two hundred dollars ($200) against said Toller, depositor of said bank, as aforesaid, on said book of accounts, and then and there, and thus and thereby unlawfully and feloniously did diminish and discharge the existing pecuniary obligation of said bank, aforesaid, to said Toller in the sum and to the amount of two hundred dollars ($200), and at the same time and by the same act with the same unlawful and felonious intent and purpose, did then and there in manner and form as aforesaid, create a, as well as increase the, existing pecuniary obligation of said Toller to said bank, aforesaid, in the sum of and to the amount of two hundred dollars ($200); which said book of accounts with the said false and fraudulent entry and entries therein unlawfully and feloniously made as aforesaid, the said defendants, John Edward Kornfeldt and James A. Plotner, did unlawfully and feloniously intend to, and did deliver, to the officers of said bank, to-wit, George H. Ruddy, George M. Edwards, directors and. officers of said bank, and "William T. Kemper and others, persons then and there dealing with said bank, aforesaid, and to the said William H. Toller, depositor of said bank aforesaid. v

“Against the peace and dignity of the State.”

On a severance the trial proceeded against Plotner. John Edward Kornfeldt at the time of the trial had pleaded guilty, was under sentence to serve two years in the penitentiary and at liberty on parole. He was the principal witness for the State.

The defendant, in August, 1914, and thereafter, was an attorney with an office in the Lathrop Building, Kansas City, Missouri, and a depositor in the Mercantile Bank mentioned in the information. At that time Kornfeldt, a young man twenty-two years of age and unmarried, was a bookkeeper in the bank and had charge of those books representing the alphabet from K to Z, Covering' Plotner’s account. Plotner had done Kornfeldt some favors so as to arouse a feeling of obligation on Komfeldt’s part. About August 17, 1914, Plotner requested Kornfeldt to come to his office, which Komfeldt did. Plotner then told Komfeldt that he was expecting certain checks to come through the bank which he would not have money deposited to cover. He had a check for $200 coming through that day, and asked Komfeldt to “take care of it.” Komfeldt was unable to see how he could take care of it in the absence of sufficient deposit to Plotner’s credit. Plotner suggested that it could be handled by charging the amount to some other depositor who had ample deposit, and promised that he would make it good the following day. The check was according!" presented, drawn by James A. Plotner, payable to B. Plimberg. Kornfeldt carried out the scheme by charging the amount, $200, on the cash journal, to the account of William Toller, a depositor. No windfall came to Plotner that night or afterwards, and the amount still remained charged to the account of William Toller. Instead of having resources by which to make good the shortage, Plotner, apparently, was incurring continual drafts upon his resources, and a few days later drew another check for one hundred dollars, and Komfeldt carried out the same sort of a scheme to cover up the transaction. Komfeldt seemed to be completely under the influence of Plotner and ready to do anvthing the latter requested in the direction indicated, although he hoped and-expected all the time, he said, that Plotner soon would make his shortages good. He endeavored at times to get Plotner to straighten out the trouble and was put off with promises and plausible explanations. Plotner’s chronic need of money caused a repetition of the transaction mentioned through a period of about three months, until his.total peculations amounted to $9,800. Among the checks so drawn and paid was one for $200 dated September 11, 1914, drawn bv Plotner, payable to Hoffi Meservev. Herman & Michael, which was charged to the account of William Toller September 14, 1914. This was the check and the false entry described in the information.

About the middle of January, 1915, the Mercantile Bank was merged with, the Commerce Trust Company of Kansas City, and when negotiations looking to that merger began, and some time prior to the merger, Kornfeldt told Plotner about it and Plotner began to figure' some way to escape the inevitable discovery which would follow an examination of the Mercantile Bank’s books. He suggested several methods to bluff the matter through and finally advised Kornfeldt to go to Kansas until he, Plotner, could fix it up, and Kornfeldt went. Plotner then, acting, he said, as attorney for Kornfeldt, went to the officers of the Mercantile Bank and told them Kornfeldt had been embezzeling funds on the bank and had confessed the same, to him in. his capacity as counsel; he suggested that a settlement in some way should be arranged. Before any definite conclusion of that matter, .Kornfeldt returned from Kansas, was arrested and gave all the facts to the police officers. Finally Plotner substantially admitted his guilt; that he had got practically all the money he was charged with getting, by means of* checks which he drew on his own account and which were charged by Kornsfeldt to .the accounts of others. It turned out that the $200 check, the entry in regard to which constituted the offense for which the defendant was convicted, was drawn to pay a claim against Plotner, a claim which he owed for an account he had collected for some person.

The entry under consideration was made in the “Cash Journal” of the bank. It never appeared on Toller’s pass book, but the entry on the cash journal affected Toller’s account in that it reduced his deposit account two hundred dollars and thus reduced the obligation of the bank to him that much. It is not shown that this false entry relating to the $200 appeared on any other book kept by the bank.

The purpose for which the “Cash Journal” containing the false entry was kept, the use to which it was put, and what was done with it, were explained by several witnesses for the State. Kornfeldt testified that after the entry was made in the book it was intended to be delivered to ‘ ‘ anyone coming in who wished to look at it. ’ ’ He did actually deliver the book to the board of directors of the bank; and .to the committee appointed by the bank as the auditing committee to check up the book. “They came and asked me for it and I took it to them. That is a delivery as nearly as I can figure it out. I carried it into the directors’ room and laid it down on the table.” He then said if William H. Toller had come in there and inquired for the book it was there for the purpose of delivery to him. This was for the purpose of inspection in the bank. Kornfeldt testified further that at the time of the merger of the Mercantile Bank and the Trust Company, before the delivery of the books of the bank to the Trust Company, he worked one whole day on Plotner’s pass book in order to balance it up and deliver it to him. He didn’t say that any false entries were in that pass book, and it may be inferred from his testimony that he was working to get entries in it that ought to have been there at the time of the transactions mentioned.

George IT. Ruddy, who was cashier- of the Mercantile Bank at the time of the transactions mentioned, swore that the cash journal in which the false entries appeared was under the control of Kornfeldt, whose duty as a bookkeeper was to take charge of it and to deliver it “to me or any other officer of the bank or any of our directors or to our examining committee as provided by the statute, or the clearing house examiner, or any customer who desired to examine Ms account in good faith', or any stockholder who wished to make an examination. ’ ’

He testified further that in the transfer of the stock of the Mercantile Bank to the Commerce Trust Company the dealing was with one W. T. Kemper, and that the books of the bank, including the cash journal, were delivered to W. T. Kemper at the time of the transfer. The witness then explained that during all the time from the entry to the transfer to the Trust Company the books, including the cash journal, were there “for the inspection of people dealing with that bank. He then enumerated the people who might inspect the hook: ‘ ‘ The officers of the hank; the stockholders of the Mercantile Bank; the auditing committee appointed by the directors of the Mercantile Bank; the Clearing House auditor; the State Bank examiner, whenever he chose to make an examination ; any depositor that desired to examine his particular account or any stockholder, and at this particular time, January 13, on account of this merger of the two institutions, Mr. Kemper, president of the Commerce Trust Company, or his representative. ’ ’

Komfeldt on being- asked if any of the officers of the bank requested him to bring the book, containing the false entry, to the Commerce Trust Company while the negotiation was pending, answered, “Yes.” On being-asked whether or not he delivered the cash journal, containing the false entries, to any members of the bank “or others dealing nrith the bank,” he answered, “I carried the book over from the Mercantile Bank to the Commerce Trust Company under my arm.”

It appeared that the witness was employed by the Commerce Trust Company at the time of the merger.

of6crime.

I. The conviction was under Section 4653, Revised Statutes 1909. It is urged by appellant that the information does not charge an offense under that statute an<l that the evidence will not support a conviction of guilt. The section is as follows:

“Sec. 4653. False entries in books of corporations, third degree. — Every person who, with intent to defraud, shall make any false entries, or shall falsely alter any entry made in a book of accounts kept by any moneyed corporation within this State, or in any book of accounts kept by any such corporation or its officers, and delivered or intended to be delivered to any person dealing with such corporation, by which any pecuniary obligation, claim or credit shall be or shall purport to be created, increased, diminished or discharged, or in any manner affected, shall, upon conviction, be adjudged guilty of forgery in the third degree.” '

Analysis of that section shows that the following facts must be shown to prove the commission of the crime: (a) There must be an intent to defraud; (b) there must be a false entry made in a book of accounts kept by the corporation; (c) by which some pecuniary obligation, claim or credit shall purport to be increased, diminished or discharged or in some manner affected; (d) the book must be delivered or must be intended to be delivered, (e) to some person dealing with the corporation.

There can be no serious question that the conditions a, b, and c were properly álleged and established by sufficient proof; there was undoubtedly an intent to defraud by the false entry in the cash journal and the account of William Toller was affected by the entry.

Delivery.

. It remains to consider what is meant by “any person dealing with the corporation,” and “delivered” or “intended to be delivered.” Kornfeldt and Ruddy swore those books were delivered and intended to be delivered to the officers of the bank, the examining committee of the directors. Such persons could not come within the definition of persons dealing with the bank in such examination as they conducted; they were acting for the bank — they were the bank. A person “dealing with the bank” in any transaction must be one who represents the other side. Doubtless the other persons mentioned in the evidence, the state bank examiner, the clearing house auditor, any stockholder or depositor, were “persons dealing with the bank,” within the meaning of the statute.

There was testimony that the cash journal was intended to be “delivered” to the depositors, stockholders or clearing house examiner whenever they desired to examine it, but in explanation of that it is said by Mr. Ruddy that they were the people who “inspected” and “looked at” the books. It is not stated anywhere that the cash journal was permitted to be taken away from the bank; in fact, the evidence indicates that ft was not. It was kept by the bank and the only liberty allowed the persons last mentioned was to examine it. There is no definition of delivery, or deliver, which does not involve at least temporarily a change of control or of possession. [18 C. J., p. 476; State v. Mills, 146 Mo. 195, l. c. 204; State v. Watson, 65 Mo. 115; l. c. 122; Chambers v. Chambers, 227 Mo. 268; Thomas v. Thomas, 107 Mo. 459; Gartside v. Pahlman, 45 Mo. App. 160; In re Estate of Soulard, 141 Mo. 642; Sneathen v. Sneathen, 104 Mo. 201; Standiford v. Standiford, 97 Mo. 231; Mudd v. Dillon, 166 Mo. 110; McNear v. Williamson, 166 Mo. 358.] We cannot assume that the Legislature in the use of a word in the enactment intended to give it a meaning radically different from that which ordinarily attaches to it, without some explanation of such intention. If it had been the intention of the Legislature to declare a crime is committed in making a false entry in a book to be “inspected by,” or “exhibited to,” or “examined by” any person dealing with the bank, it would have been not only easy-, but it would have been the obvious thing, to use such words in describing the crime. Of course we cannot say what reason actuated the Legislature in so restricting the operation of the statute. We can only give it effect as it reads.

T>a acj.nnnlr

Manifestly the definition under consideration would apply to pass-books kept and intended to be delivered to the customers of the bank. But there was no, false entry nor alteration in the pass-book of Mr. ^ x Toller. His pass book showed exactly the correct statement óf his account. There is no definite testimony that there was a false entry in the pass-book of Plotner the defendant, although it may be inferred from the testimony of Kornfeldt that Plotner ’s pass-book didn’t show the time state of his account, because when the transfer was made to the Trust Company Kornfeldt worked all day on that passbook to gei it to balance correctly. While it didn’t show the false entry in relation to the $200 the footings in the pass-book probably were false. But the information does not charge that the false entry was made in his pass-book.

It was not necessary, in order to come within the meaning of the term “deliver,” to place the book permanently beyond the control or demand of the bank, as in case of gift or sale, as involved in some of the above cases. There may be a delivery for the purpose of inspection, or a conditional delivery; yet, in any such case, there would have to be temporarily a transfer of actual and absolute control of the bank. Would the State Bank Commissioner, his deputy and the bank examiners, in the examinations of the bank which the law required them to make, possess such control in any degree different from that enjoyed by stockholders and clearing house examiners ? Undoubtedly, yes. Under Section 1080, Revised Statute 1909, amended by Laws 1911, pp. 91, 92, the Bank Commissioner and subordinates are required to visit and examine every bank and trust company doing business under the laws of this State. They have power to cause proceedings to be instituted against any bank which they find mismanaged, and if they find its continuance in business will seriously jeopardize the safety of its depositors, they are authorized to “close said bank” and take charge- of its property and effects (R. S. 1909, sec. 1081)', and may appoint a special agent to take charge, pending the appointment of a receiver. .Obviously, in making their examinations, the Bank Commission and examiners have absolute control of the books of the bank; the books must be “delivered” to them for that purpose. They are persons “dealing with the bank.” Persons dealing with the bank also would include any one who might at any time purchase the bank or negotiate with the bank for that purpose. Kemper and the Trust Company would come within that definition.

intention.

Now the intention of the defendants in regard to delivery of the book is immaterial. The words, “intended to be delivered” used in the statute refer to the intention of the corporation which owns the hook, the purpQge .j?or wbich the hook is kept. The criminal must entertain an intention to defraud, hut it does not matter against whom the intention would operate (Sec. 1921, R. S. 1909). Obviously the delivery of, or intention to deliver, the book in which the false entry is made, is no element of the crime so far as it includes the intent and acts of the defendants. That is merely a description of the conditions under which the crime may be committed, the instrumentalities at hand which the criminal-may use in the perpetration of his crime. The entry must be made in that kind of a book.

It is not alleged that the banlc intended to deliver the book to any person, or kept it for that purpose. While the proof is sufficient to show the commission of the crime by making a false entry in a book intended to be delivered to persons dealing with the bank, the information is defective in failing to make- the necessary allegations concerning that element. For that reason the cause will have to be reversed.

■ . onspiracy.

II. It is claimed by the appellant that the crime is not proved, because Plotner directed Komfeldt not to charge the particular check in question to the accomi^. o:f Toller, and therefore the false entry was made in direct violation of the defendant’s direction.

Plotner’s checks falsely charged to other accounts had been coming through since August and some of them charged to Toller’s account. The check which caused the false entry mentioned in the information was drawn September 11th. On cross-examination Kornfeldt said that Plotner had told him to charge the check, of September 11th to some- account that he had not manipulated before. The reason was, as the witness explained, he had so much money off of other accounts that Plotner told him to pick out an account “that had some money that would stand that.” After considering the various accounts to which he might make the charge, the witness said he could not run any chances by taking it off an account that might have a big pay-roll at the end of the week and wipe off the balance. Therefore he charged it to Toiler’s account again, because he knew his account would be good for it.

It will be borne in mind that Plotner in the first instance instructed Komfeldt how to conceal the shortage by charging it to someone whos.e account would be good, and Kornfeldt carried out the instruction as best he could. The mere suggestion that he pick out some account that had not been manipulated was general; it didn’t particularly designate Toller’s account as one to avoid, nor imply that Kornfeldt should not use any discretion in the matter. He was conforming to the desire of Plotner when he selected an account which, as Plotner indicated, “would stand it.” The conspiracy between the two was clearly and perfectly shown. The general purpose of the conspiracy was to get the money and make false entries to conceal the act. What one conspirator did in carrying out the general purpose was the act of the other, even though they might differ in unimportant details as to how the scheme should be carried through. The particular account to be selected for the purpose of manipulation was necessarily left to the judgment of Komfeldt.

If two or mpre persons agree together to commit some crime and enter upon the commission of the crime, and one of them, in pursuance of the common design and for the purpose of carrying it out, performs some criminal act different from that in contemplation of the parties at the outset,, the others will be guilty of the criminal act. The doctrine is fully explained and illustrated in the case of State v. Darling, 216 Mo. 450, l. c. 458 to 464. See also People v. Friedman, 45 L. R. A. (N. S.) 55, note. The point is without merit.

crimes

III. Appellant assigns error to the admission of evidence showing numerous other checks besides the one under consideration, all followed by false en-drawn by the defendant. Other crimes of the same character may be proven for the purpose of showing the intent with which the act charged was done, when the crime is of a character such as is shown in this case. Several late cases fully elucidate the limits of the rule. [State v. Hill, 201 S. W. 58, l. c. 60; State v. Cummins, 213 S. W. 969, l. c. 974; State v. Patterson, 271 Mo. 99, l. c. 110.]

. . .uimi ations.

IV. It is claimed by appellant that the case is barred by the Statute of Limitations. The false entry was máde September 14, 1914, and the information on which the trial was had was filed September 26,1917, more that three years thereafter. An' information was filed charging the same offense September 10, ^ within the three years. The point appellant makes is that the information qn which the trial was had is not shown to be an amendment to the first information and bears a different number. However, there appears in the record an order of court to the effect that the State was given leave to file an amended information in case No. .15130, the number in which the first information was filed, and the order recites that -by mistake the amended information was given a different number. The court thereupon entered an order correcting the number so as to show the information upon which the case then being tried was the same cas.e as that in which the first information vvas filed. Thus the record shows the Statute of Limitations does not bar the action.

V. ' Appellant makes the point that" no offense was committed because Section 4653 “uses the word “entries” in describing the crime, and therefore a single false entry would not be a violation of the law.

Section 8053, Revised Statutes 1909, is as follows: “The Singular Included Hnder the Plural. — "Whenever, in any statute, words importing the plural number are used in describing or referring to any matter, parties or persons, any single matter, party or persons shall be deemed .to be included, although distributive words may not be used.”

Appellant points ont that Section 4653 as originally enacted contained the singular “entry” and in 1845 was amended making it plural, “entries,” and argues that the amendment indicated an intention to change the meaning and exclude the application of the act to a single entry.

Section 8055, Revised Statutes 1909, however, provides that the rules prescribed in Section 8053 and Section 8054 “shall apply in all cases unless it be otherwise specially provided, or unless there, be-something in the subject or context, repugnant to such construction.”

That provision excludes the possibility of a construction which would limit the operation of the word “entries,” as Section 8053 says it shall not be limited. The construction which appellant desires to apply is not “specially provided,” nor is there anything in the “subject or context” of Section 4653 defining the offense which is “repugnant to” the construction definitely required by Section 8053. Se'ction 8053 was enacted long before and was the law at the time the amendment of Section 4653 in 1845 changed the. word “entry” to “entries.” The Legislature must be presumed to' have made the change with a full understanding of the construction which Section 8053 would apply to it.

The judgment is reversed and the cause remanded.

B,alley and Modey, GC., concur.

PER CURIAM: — The foregoing opinion of White, 0., is adopted as the decision of the court.

Williams, P. <7., .and Walker, J., concur; Williamson, J., not sitting.