author: Ryland, Judge, Scott, Judge.

text:
    Page & Bacon, Defendants in Error, vs. Lathrop, Plaintiff in Error.
    1. Possession hy the endorser of a dishonored hill of exchange is evidence sufficient to enable him to maintain an action thereon, though at the same time there appears upon the bill an endorsement in full from him to another party.
    2. Although a bill purports to have been drawn by an agent under a special written authority, other evidence is admissible to establish his authority, so as to relieve him from personal liability on the bill, as a person acting without authority. (Scott, J., dissenting.)
    3. Can a payee, who receives a bill, drawn by an agent in the name of his principal under a written authority shown to him at the time, afterwards charge the agent as principal, as having drawn without authority?

      Error to St. Louis Court of Common Pleas.

    Page & Bacon sued Lathrop as the drawer of a draft on-David Green, of Baltimore, for $1000, dated December IS^ 1849, at twenty days’ date, payable to their order, and signed “ Green & Co., by H. F. Lathrop, agent.” In the body o£ the draft was the following memorandum : “ This draft being drawn on your letter of credit to me, dated Baltimore, November, 30, 1849.” It was endorsed as follows : “ Pay Samuel Harris & Sons, or order, without recourse on us. Page & Bacon.”

    The plaintiffs alleged in their petition that the defendant drew the bill without due authority. The letter of November 30, 1849, referred to in the bill, contained the following clause : “ You must not let one of our drafts come back upon any account, and can draw upon here at twenty days’ sight at all times, when for our benefit.”
    The defendant then offered to show that he was the agent at St. Louis of Green & Go., who were the proprietors of an express from Baltimore and New York to the western cities ; that Green, one of the members of the firm, resided in Baltimore, and Jones, the other member, at Cincinnati; and that he, as their agent, had general authority to draw bills on Baltimore or Cincinnati to meet drafts on him ; that the bill sued upon was drawn to meet other drafts of Green & Co. upon him, which he had not sufficient funds in his hands to meet; and that he was instructed by a letter dated Cincinnati, November 30, 1849, not to suffer any drafts of Green & Co. to go back protested, and authorized to draw at fifteen or thirty days’ date, if necessary, to protect the credit of the house. All this evidence was excluded by the court below, and the jury were instructed that, as the letter, by authority of which the bill purported to be drawn, did not authorize it, the defendant was liable as principal. Two instructions asked by the defendant were refused, and after Judgment against him, he sued out this writ of error.

      B. A. Hill, for plaintiff in error,
    among other points, made the following : 1. It was a question of fact for the jury, whether the letter, referred to in the body of the bill, authorized the drawing of such bill. ( Taylor v. Labeaume, 14 Mo. Rep. 572. 19 Ala. 165. 20 Ala. 313.) 2. The court erred in holding that the defendant could not show his authority by any other evidence than the letter referred to in the body of the bill. ( Mechanics’ Bank v. Bank of C dumbia, 5 Wheaton, 326. 3 Cranch, 415. 1 Wash. C. C. R. 174. Story’s Agency, §270. 17 Wend. 40. Cow. & Hill’s Notes, Phill. Ev. 3 vol. 1464 and 5. 19 Johns. Rep. 60. 9 Id. 334. 13 Id. 307. 10 Wend. 275. 8 Pick. 56-61. 12 Mass. 173.) 3. The plaintiffs were bound to know the extent of Lathrop’s authority, and cannot now be heard to deny it. (1 Pet. 290. Walk. Ch. Rep. 214. 12 Smedes & Marsh. 398. Story’s Agency, §72, §81, §265.) 4. The plaintiffs are not now the legal holders of the bill. It belongs on its face to Harris & Sons. 5. The defendant cannot be sued as the drawer of the bill, which, upon its own face, is the bill of Green & Co. If an agent exceeds his authority, he must be sued for fraud and deceit and not as a party to the bill. (Ballou v. Talbot, 16 Mass. 461. Longv. Colburn, 11 Id. 97. Johnson v. Smith, 21 Conn. 627. 12 Eng. Law and Eq. 430. Note to Thompson v. Davenport, 2 Smith’s Lead. Cases, 223.)

      Knox & Kellogg, for defendants in error.
    1., There was no necessity for a re-indorsement of the bill, to enable the plaintiffs to maintain a suit upon it. (Dugan v. The United States, 3 Wheat. 172.) 2. It was not competent for appellant to prove any authority to draw the bill, outside of the letter under which, on the face of the bill he claimed to act. (1 Denio, 471. 8 Wend. 494. 2 Ala. 718. Story on Agency, (3d ed.) §76, §264, §166, §169. 1 Greenl. Ev. §275.) 3. The weight of authority is manifestly in favor of the liability of an agent who draws a bill without authority, upon the paper itself, as a party thereto. (Story on Agency, §264. 3 Johns. Cases, 70. 1 Denio, 480. 8 Wend. 494. 4 fi. H. 239. 2 Croropt. & Mees. 530. 2 Ala. 718.)
   Ryland, Judge,

delivered the opinion of the court.

This case presents two or three important questions which I will state and give our views and opinions thereon. 1. Is the possession by the endorser of a dishonored bill of exchange evidence sufficient for him to maintain an action thereon, when, at the same time, there appears upon the bill an endorsement in full from such holder to another party ? 2. If a bill of exchange purports to have been drawn under a special written authority referred to, can other evidence be gone into, to establish the agent’s authority, so as to relieve him from personal liability on the bill, as a person acting for another, without authority ? 8. If the payees saw the authority and took the hill under it, can they afterwards deny the authority, and charge the agent as principal for acting without authority ?

1. The first question we answer in the affirmative. The endorser of a dishonored bill being in possession, although there is on the bill an endorsement in full from him to another party, may yet maintain his action thereon. In support of this doctrine, we refer to the-case of Dugan v. United States, (3 Wheat. 172.) In this case, the Supreme Court of the United States held that, “if any person, who endorses a bill to another, whether for value or for collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full, subsequent to the one to him, without producing any receipt or endorsement back from either of such endorsees, whose names he may strike from the bill or not, as he may think proper.” In Warren v. Gilman, (15 Maine, 70,) the same doctrine is held. In McGee v. Prouty et at., (9 Metc. 547,) the same doctrine is held is regard to a promissory ntfte that had been negotiated. In Picquet v. Curtis, (1 Sumner’s U. S. C. C. Rep. 478,) the same doctrine is held. (See Story on Prom. Notes, §452.) In answering, then, the first question stated above, it is the unanimous opinion of this court, that such endorser may now maintain an action under such circumstances. Such is the modern doctrine of the American courts.

2. In answer to the second question, the majority of the court are of opinion that such other evidence may be gone into, to show that the agent had authority to draw the bill, although the special instrument referred to on the face of the bill may not give him authority to draw, as he has done. The real question in such a case is, had he the power to draw, and we cannot see why he should beheld personally liable, because he, on the face of the bill, refers to power given by letter of a certain date, when there may be no such power in any letter of that date; but there may be general power and authority to draw such bill, by previous letters ; that is, we cannot suppose the bare mistake of the agent, in referring to a paper for the proof of his authority, precludes him from proving such authority by any other competent evidence.

This does not, in our opinion, have any thing to do with the doctrine that a special agent must strictly confine himself within the scope of his authority; nor does it take away the personal liability of the agent who acts without authority.

It is a settled doctrine that, where the name of the principal appears on the face of the instrument or contract, and it is evident that the agent did not intend to bind himself personally, but acted merely on behalf of the principal, if he acted by competent authority, the principal and not the agent will be bound. (See Rathbun v. Budlong, 15 Johns. 1.)

In the case of the Mechanics’ Bank v. Bank of Columbia, (5 Wheat. 387,) Mr. Justice Johnson, in delivering the opinion of the court, says: “ It is by no means true, as was contended in argument, that the acts of agents derive their validity from professing, on the face of them, to have been done in the exercise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the diversified exercise of the duties of a general agent, the liability of the principal depends on the facts : 1, that the act was done in the exercise, and 2, within the limits of the powers delegated. These facts are necessarily inquirable into by a court and jury, and this enquiry is not confined to written instruments, (to which alone the principle contended for could apply,) but to any act, with or without writing, within the scope of the power or confidence reposed in the agent.

In McClung’s Ex'rs v. Spotwood, (19 Ala. 165,) the Supreme Court of Alabama held that the question of agency is a matter of fact, which it is the province of the jury to decide upon; and if there is any evidence tending to prove the authority of the agent, it should be left to the jury to determine the sufficiency and weight of that evidence. Dargan, Chief Justice, says,: “ But in most cases, if not in all, the question of agency is a matter of fact, which it is the province of the jury to determine upon under the instructions of the court, and if the testimony tends to prove that the person acting as agent had authority from his principal to do the act, then it is manifest that the court cannot exclude from the jury the act itself, without overstepping the line of its duty, and assuming to determine a matter which belongs to the jury, to-wit: the authority of the agent to do the act. The correct rule is this, if there is no proof whatever tending to prove the agency, the act may be excluded from the jury by the court; but if there is any evidence tending to prove the authority of the agent, then the act cannot be excluded from them, for they are the judges of the sufficiency and weight of the testimony.” (See also McMorris v. Simpson, 21 Wendell, 610. McDonnell v. Branch Bank at Montgomery, 20 Ala. 313.)

It is well settled, if a private agent draw a bill, or enter into any other contract in his own name, without stating that he acts as agent, so as to bind his principal, he will be personally liable. (Chitty on Bills, 36. 5 East, 148. 1 Bos. & Pul. 368. 1 Term Rep. 181.) It is not sufficient to charge the principal, or protect the agent from personal liability, merely to describe himself as agent, if the language of the instrument imports a personal contract on his part. But here the question is, can the agent, who draws a bill, stating on its face that it is drawn by virtue of authority given to him by a letter from the principal, of a certain date, be permitted to show by other evidence than that letter, that he had the power to draw such bills? Is the agent acting within the limits of the business prescribed ? Has the power to draw such bills been given ? Can he show that he has authority for the act done ? These are the real matters to be regarded, and not the particular mode or way in which the evidence of such power can be offered or allowed.

In the opinion then of Judges Leonard and Ryland, the second question must also be answered in the affirmative. It is a question of authority only, and no rule should limit the proof of such authority to the mode only, or to any one particular instrument of proof alluded to or referred to in the act of the agent. In the opinion, then, of these judges, the judgment must be reversed.

3. In answer to the third question, there is some doubt. Judge Scott is inclined to the opinion that, if the payees, after having had an opportunity of seeing and examining the authority under which the agent draws the bill, and making no objection as to any want of such authority, purchase such bill, they ought not to be allowed afterwards to set up the absence of such power in the instrument referred to, as giving the authority to the agent as a reason why they should hold the agent personally responsible. Judge Leonard gives no opinion on this point, and Judge Ryland is inclined to doubt the propriety of holding the payees bound. However, without wishing to be understood as giving any opinion on that question, either way, and having come to the conclusion that the court below erred in giving the instruction for the plaintiffs, in relation to the second question at the beginning of this opinion, the judgment below is reversed, and the cause remanded;

Judge Leonard concurring.

Scott, Judge.

In my opinion, as the bill was drawn in reference to a special authority, it was not competent to show by parol evidence that there was any other authority to draw it. The expression of one thing is the exclusion of another, and the giving of special authority to draw a particular bill shows that it was not intended that it should derive its existence from any general authority. An authority to an agent to do a thing at his discretion, cannot stand with an authority to do the same thing in a particular way. These powers must be so construed as to harmonize. That can only be done by making the special an exception to the general power.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    McCune & Vandeventer, Plaintiffs in Error, vs. Hull & Wife, Defendants in Error.
    1. An action by one tenant in common to compel a co-tenant, wlio has received more than his share of the rents, to account, is one, jurisdiction of which is not taken away from the St. Louis Circuit Court by the act establishing the Land Court.

      Error to St. Louis Circuit Court.

    The petition alleged that the plaintiffs and defendants were tenants in common of a tract of land in St. Louis, and that the defendants had received all the rents and profits. The plaintiffs prayed for an account, and for judgment for their proportion. A demurrer to the petition, for want of jurisdiction, was sustained by the Circuit Court.

      C. C. Whittelsey, for plaintiffs in error.

      C. JB. Lord, for defendants in error.
   Scott, Judge,

delivered the opinion of the court.

1. By the constitution, it is prescribed that the Circuit Court shall have exclusive original jurisdiction in all civil cases, which shall not be cognizable before justices of the peace, until otherwise directed by the general assembly. The Circuit Court, then, is the original constitutional court, possessing all jurisdiction not exercised by justices of the peace. When, therefore, other tribunals are created, clothed with a portion of the jurisdiction of this original court, and a question arises between this original court and those afterwards created, in cases of doubt, the presumption should be in favor of the original court. This action is what would have been formerly called an action of account, given by our statute to one co-tenant against another, who has received “ more than his due proportion of the benefit of the estate.” It is a case in which no action lay at common law, for the want of privity of contract between the parties. It was a wrong merely for which the statute of the 4th of Anne, which we have adopted, gave an action. It is no action founded on contract relating to land, within the meaning of the second section of the act creating the land court; nor is it for rents, emblements, crops or annual productions of land as such. The plaintiffs had no right to these as such, but a compensation for their co-tenant receiving more than his benefit of the estate. (R. C. 1855, p. 55.) The section of the statute referred to contemplates those actions in which a right to rents, emblements, crops or annual productions as such is asserted. The use of the land was not by contract, but by wrong.

Neither is the case within the last clause of the section relating to the leasing or renting of the land, or concerning the relation of landlord and tenant, as it is clear that this relation did not exist between the parties, there being in the petition no allegation of any contract, express or implied.

It would be extremely inconvenient to give the statute conferring jurisdiction on the Land Court such a construction, as would make its powers depend, not upon the form of the action brought, but upon collateral questions, which may or may not arise in the progress of the trial. Parties would never know where to bring their actions. They would have to lay them first, in order to ascertain the court possessing jurisdiction. This is a matter of no importance, and reason and convenience require that the court having jurisdiction of the main action must determine all questions arising in it, whether they relate to land titles or any other matter.

The other judges concurring, the judgment will be reversed and the cause remanded.


author: Leonard, Judge,

text:
    Pomeroy & Durkee, Respondents, vs. Coons, Appellant.
    1. A firm composed oí C. & G., and doing 'business under that style, was succeeded by another firm styled C., G. & Co , composed of C., G. and a son of C., which again was succeeded by a third firm of the same style as the first, but composed of C.’s son and G. During the existence of the last firm, a note was by G. given in its name to a party who had dealt with the first firm, and was without notice of its dissolution. Held, this was •prima facie the note of the firm existing when it was given, and so not binding upon C., the member of the first firm of the same style. But if it was in fact given on account of that firm to a customer without notice, C. would be bound.

      Jlppeal from St. Louis Court of Common Pleas.

    The case is sufficiently stated in the opinion of the court.

      Shepley, for appellant.
    The general principle that the liability of a retiring partner, as to parties who have previously dealt with the firm, continues until notice to them of the retirement, is only applicable when there is no change in the partnership name, so that every thing appears to go on as before. (Story on Partnership, 246-7-8. Cullyer on Part. 483.) When there is a change in the style of the firm, this of itself is a sufficient notice. The style of the firm having once been changed, the members of the first firm cannot be made liable for the debts of a new firm afterwards formed by other parties, of the same style as the first, merely because of the similarity of names. The link having once been broken by the formation of the firm of Coons, Gallaher & Co., the plaintiffs, with or without knowledge of that fact, as to all subsequent transactions, stood just as if no firm of Coons & Gallaher had previously existed.

      Krum & Harding and Jl. M. Gardner, for respondents.
    It appears that the respondents had dealings with the firm of Coons & Gallaher, while Mrs. Coons was a member of that firm, and does not appear that they had any dealings with the firm of Coons, Gallaher & Co., or ever had any notice of its existence. They had a right to believe that they were giving credit to tbe first firm of Coons & Gallalier, until they had actual notice of the dissolution of that firm. (12 Barb. 27. 6 Johns. 144. 5 G. & J. 383. 5 Vermont, 149.) The formation of the firm of Coons, Gallaher & Co., however notorious, did not amount to such notice. (17 Pick. 365.) See also, 4 Barr, 205. 33 Maine, 366. 24 Vermont, 278. 8 Wend. 423.
   Leonard, Judge,

delivered the opinion of the court.

The instruments here sued upon were an acceptance by Coons 6 Gallaher of a bill of exchange of the 15th of September, 1848, drawn by Stewart upon them, payable at four months, for $387 30, and a promissory note of the 11th July, 1848, made by Stewart payable to Coons & Gallaher for $328 70, at four months, and endorsed by them payable to the plaintiffs, and the action was against the defendant, Mrs. Coons, as a partner of the firm of Coons & Gallaher.

The proof conduced to show that there had been three mercantile partnerships in business at St. Louis in succession ; one of “ Coons & Gallaher,” composed of Mrs. Coons and Hugh Gallaher, from 1843 until March, 1846; the second, of “ Coons, Gallaher & Co.,” composed of Mrs. Coons, Hugh Gallaher and B. E. Coons, from March, 1846, to March, 1847, and the third of “Coons & Gallaher,” composed of B. F. Coons and Hugh Gallaher, from March, 1847, until the same time in 1849.

The question upon the trial being whether the defendant was liable upon these instruments, the substance of the instructions was, that if Mrs. Coons was originally a member of the first firm, during which time the plaintiffs had dealings with it, and Gallaher endorsed the note and accepted the bill in the name of Coons & Gallaher, the defendant is liable, unless she had previously withdrawn from the firm and given notice to the plaintiffs, or they otherwise had notice of the fact.

This direction cannot be sustained, and the cause must go back for a new trial.

1. In order to come to a proper understanding of this matter, and avoid the confusion that seems to be incident to it, let us first consider which of these two firms, doing business under the same name of Coons & Gallaher, was prima facie liable upon the paper, without any reference to the character of the creditor as a former customer of the first firm.

Although a partnership is not a civil person, like a corporation, yet it has this in common with an incorporated company, that, as the members of such a company transact their business in the corporate name, so the members of a partnership transact their partnership business in some name they assume for that purpose ; and when a note is drawn in the partnership name by any one authorized to act for the firm, the partnership, or in other words, each member of this voluntary society is bound. In Boyle v. Skinner, (19 Mo. Rep. 83,) the note was payable to James A. Hardy, and there was a partnership composed of Hardy and two other persons, doing business under the style of James A. Hardy, and the court held that, in the absence of proof to show to whom or upon what account the note was given, the presumption was, that it was given to Hardy individually and not to the partnership acting under that name. So, here the presumption would be, in the absence of proof upon what account the note was given, that it was given in behalf of the existing partnership of Coons ’& Gallaher, and not of a partnership that had formerly existed and carried on business under the same style. In the instructions given, it seems to be admitted that, if the plaintiffs had been strangers instead of customers of the first firm of Coons & Gallaher, the presumption would have been as I have indicated, and upon the same principle, we presume it will be readily admitted that, if the third partnership had assumed a different name, and the instrument sued upon had been executed in such other name, Mrs. Coons would not have been liable. But it is argued that it is otherwise in reference to a customer of the old house, who took the paper without any notice that Mrs. Coons had retired from the partnership. If Mrs. Coons had retired, when her son first came in, and the business had been continued under the same name, there would then have been such a continuation of the partnership by reason of the continuing identity of name and of some of the partners, that notes afterwards given on account of the continuing partnership would, in reference to a customer without notice, bind a retired partner, and the same consequence would have followed here, and for the same reason, if, after Mrs. Coons had retired in 1847, the remaining partners had continued the business under the old name of Coons, Gallaher & Co., and the note had been executed in that name. Here, however, there was no such continuation of the first partnership of Coons & Gallaher. The continuity between that firm and the third firm of Coons & Gallaher, composed of the son and former partner, was interrupted by the interposition of the second firm of Coons, Gallaher & Co., and a note given on account of this new firm does not bind, as such, a partner of the first firm ; nor does a presumption arise even in favor of a former customer taking such a note, that it was given on account of that firm. It was not in the power of Mrs. Coons to prevent her son and Mr. Gallaher from doing their partnership business in their own names of Coons & Gallaher, nor was there any thing improper in it on their part. Assuming that the instruments were executed by Gallaher on account of the existing firm of Coons & Gallaher, it was the plaintiffs’ misfortune, if misled by the identity of name, they took the paper under the impression that it was the paper of the old firm of Coons & Gallaher; but it proceeded from their own negligence, when there was a new existing firm of that name, which was not a mere continuation of the former firm, that they took it without first ascertaining on account of which firm it was given.

If the paper were in fact given by Gallaher on account of the first firm, then Mrs. Coons is liable, if the plaintiffs had been customers of the firm, and took it without notice that she had ceased to be a partner. Each partner is placed over the business of tho firm — “ prsepositus negotiis socictatis” — and as such has implied authority, in these commercial partnerships, to bind the firm for paper of this character, and although the partnership is in fact dissolved, this implie 1 power continues to exist, in reference to customers of the house, who have no notice of the dissolution ; and therefore a note afterwards drawn by a partner, on account of the firm, binds all the partners in favor of such person; but this leaves untouched the question upon account of what partnership the note was given, for, although the partners have still the authority to bind the firm, yet the firm is not bound unless the authority is exercised; and it cannot be said to be exercised, when the note is in fact given on account of a different partnership. If the third firm could be considered as a mere continuation of the first firm, so that a note executed upon account of that firm might be considered as executed on account of the same firm, of which the defendant was a member, then the difficulty we have suggested is obviated; and the defendant is clearly liable under the circumstances indicated, and it is, we presume, upon this idea that the court below proceeded.

But we do not consider the third firm, if it were in truth a partnership between Benjamin F. Coons and Gallaher, under the style of Coons & Gallaher, as a continuation of the first firm, in such a sense as to render a note executed on account of that firm binding upon the first firm in favor of a former customer without notice.

The general doctrine no doubt is, that the partnership still continues liable, notwithstanding the dissolution, in favor of a customer who takes without notice a note executed in the name and on account of the firm ; and when a partner retires, and the business is continued under the same style, the continuing partnership is considered the same partnership within this rule, so far at least that a note, executed on account of this continuing partnership, binds the retired partner in favor of a customer without notice. But the cases have not gone the length of declaring that when this continuity has been broken up by the establishment of a new partnership, composed, in part, of other persons and under a new name, that upon the retiring of a partner from tills second firm, who was a member of the first firm, and the establishment of a third partnership under the name of the first, and composed, in part, of members of the first firm, it shall be considered the same partnership, so that a note executed on account of it shall bind the first firm, and we shall not extend the rule to such a case. We repeat, if the instruments were, in fact, executed by Gallaher, on account of the first firm, Mrs. Coons is, of course, bound under the circumstances suggested in the instruction; but we think she is not hound if they were executed on account of the existing firm of Coons & Gallaher, and the continuity of that firm with the first firm of the same name, had been interrupted by an intervening firm, composed, in part, of different persons and doing business under a different name.

Note. — A motion for a rehearing of the above cause was overruled. The point insisted upon was, that it did not appear tint the respondents ever had any notice of the existence of the firm of Coons, Gallaher & Co.

The consequence is, the judgment must be reversed, in order that the cause may be re-tried under this view of the law applicable to the case; and the other judges concurring, it is accordingly reversed and remanded.


author: Ryland, Judge.

text:
    Owen, Appellant, vs. O’Reilly, Respondent.
    1. Where a plaintiff, in a suit for wages, proves services, hut fails to prove their value, an instruction that he cannot recover is erroneous, as he is entitled to a nominal sum at least.
    2. Where the plaintiff, in a suit for wages, closes his case, having proved services, but not their value, but immediately afterwards offers to remedy the oversight, a court, in the exercise of its discretion, should permit him to do it.

      Jlppeal from St. Louis Law Commissioner'’s Court.

    Action for wages, begun before a justice. At the trial'before a jury, upon appeal, the plaintiff introduced evidence tending to prove the services for which he claimed to recover, and closed bis case, without having proved the worth o£ the services, and thereupon the court instructed the jury that he could not recover. He then offered to remedy the omission by the testimony of witnesses present in court, but this the court refused to permit, whereupon he submitted to a nonsuit, with leave, and after an unsuccessful attempt to set the same aside, appealed to this court.

      R. S. MacDonald, for appellant.

      JBlennerhassett & Shreve, for respondent.
   Ryland, Judge.

The court below should have permitted the plaintiff to introduce his testimony in relation to the value of the services he had rendered the defendant. The instruction that the plaintiff cannot recover in this case, upon the proof madé, was erroneous. He was entitled to recover nominal damages at least. This instruction, then, should have been refused.

It was not a proper exercise of judicial discretion to refuse the plaintiff in this case his motion for leave to introduce this testimony. It was clearly an omission — a mere oversight — and the court ought at once to have suffered him to correct it. (Brown v. Burrus, 8 Mo. Rep. 30.) See also, Rucker v. Eddings, (7 Mo. Rep. 118.)

There could have been no necessity to have forced the plaintiff to suffer a nonsuit, when the inadvertence committed by him was so easily remedied.

The courts should exercise their discretion soundly for the advancement of right, and lend always an unwilling ear to mere technical objections, either in pleading or practice.

The judgment is reversed, and the cause remanded ; the other judges concurring.


author: BURGESS, P. J.

text:
    THE STATE v. HARRY VAUGHAN, GEORGE RYAN and EDWARD RAYMOND, Appellants.
    Division Two,
    December 4, 1906.
    1. MURDER: Evidence: Killing of Another: Res Gestae. Defendants, convicts in the penitentiary, in pursuit of an unlawful agreement among them to intimidate the officers of the prison in order to enable them to escape therefrom, killed a guard named Clay at the gate, for whose murder they were on trial, and in further pursuit of such attempt to escape, a few moments later killed another guard named Allison. Meld, that evidence of the killing of Allison was properly admitted as a part of the res gestae. Everything occurring contemporaneously with the main difficulty is a part of the res gestae.

    2. -: -: -: In Attempt to Commit Felony. Evi-. dence of the killing of Allison was admissible also on the ground that it was committed in furtherance of the success of the agreement or understanding among defendants to commit a felony, namely, to forcibly escape from the penitentiary.

      3. -: -;-: Prearrangement to Kill Another. Nor was it necessary, in order for evidence of the killing of Allison to be admissible, that it be s.hown that there was a prearranged understanding among defendants to kill him.
    4. -: -: -: Conspiracy. When two or more persons enter upon an unlawful understanding, with a common purpose, to aid and assist each other in whatever may grow out of the understanding, each is responsible, civilly or criminally, for everything which may proximately result from such unlawful purpose, whether contemplated at the time the arrangement was made or not, and whether actually performed by all or any one of the wrongdoers.
    5. -: Several Codefendants: Instruction: Separate Verdicts: Province of Jury. Where several defendants, engaged in a common purpose to, commit a felony, in the pursuit of which a murder was committed by one of them, are tried together, even though they may all alike be guilty, they are entitled to have the jury instructed that they are at liberty to find one or more of them guilty and others not guilty, and the refusal of the court to give such an instruction is reversible error. Whether or not they are all alike guilty is a question for the jury to determine, and it is their province, if so inclined, to acquit one or all of them, or to acquit some and find the others guilty, or guilty of a less degree of the crime than that charged, notwithstanding the evidence to the contrary. So that it was error, where three men were being tried and instructions were given for murder in -the first degree only, to require the jury to find all guilty or acquit all.
    6. -: -: Rights of Accused: Separate Verdicts. Each of several codefendants, indicted and jointly tried for the same murder, though a conspiracy is clearly shown, is entitled to have the jury pass upon his guilt or innocence and to have the evidence considered in regard to his particular case, unbiased and uninfluenced by the evidence in respect to his codefendants.
    7. -: -: Conspiracy to Commit Felony: Agreement Not to Commit Murder: Instruction. Where several defendants entered into a common undertaking to commit a felony, namely, to escape from prison, and in pursuance of that concerted purpose one of them killed a guard, the court should not instruct the jury that, if an agreement was made among them and it was distinctly understood that no one was to be killed in carrying out their undertaking, no one except the one who actually did the killing could be convicted of the murder. The murder being committed in the perpetration of another felony and in accordance with a concerted plan to commit that felony, they ■ were all equally guilty of the resulting murder.

      8. -: -: -: -: -: Contrary to Physical Facts. And where such pretended agreement, and distinct understanding that no one was to be hilled in the perpetration of the felony agreed upon, was inconsistent with the physical facts, the court should for that reason alone refuse such an instruction. Courts are not required to yield credence to the statement of a defendant which is absolutely inconsistent with the physical facts, and base an instruction on such simulated evidence.
    9. -: Instructions for First Degree Only. It is held in this case that the court correctly restricted the instructions to murder in the first degree, there being no evidence justifying instructions for a less degree.
    Appeal from Cole Circuit Court. — Hon. Wm. H. Martin,. Judge,
    Reversed and remanded.

      E. L. King and Edwin Silver for appellants.
    (1) The court erred in permitting the State to introduce evidence of the killing of Allison. The record shows that the killing of Clay occurred from five to ten minutes before the shooting of Allison, and was a separate and distinct offense, and that the homicide of Allison was really not necessary to throw light on or to explain the killing of Clay; hence, the evidence as to the Allison killing was incompetent and inadmissible. 1 Bish. New Crim. Proe. (4 Ed.), sec. 1120. (2) The court erred in denying to defendants the benefit of instructions 2 and 4 asked by them. 1 Bishop’s New Crim. Procedure, sec. 1035; 1 Archibald’s Crim. Procedure (8 Ed.), p. 303; State v. Kaiser, 124 Mo. 651; Abrams v. State, 121 Ga.-170; State v. Daniels, 38 So. 89'4; Mo. Const., art. 2, secs. 22 and 28, (3) The trial court also committed error in refusing to give instructions 5 and 6 requested by defendants. (4) The trial court committed error in refusing to give instructions 7, 8 and 8% requested by defendants. State v. May, 142 Mo. 135; People v. Knapp, 26 Mich. 112; Mercer-smith v. State, 8 Tex. App. 211; Frank v. State, 27 Ala. 37.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) (a) The State’s evidence, to the effect that immediately after the shooting of deceased Clay one of the defendants shot and killed Mr. Allison and wounded Mr. Young and shot at Mr. Bruner, was properly admitted. The persons named were guards in the penitentiary and witnesses to the effort made by defendants to escape, and also witnesses to the killing of the deceased Clay. And the evidence referred to tended to - prove that the defendants were not only trying to escape from the penitentiary and avoid being captured, but were also trying to kill the persons who witnessed the commission of their crime. The fact that said evidence tended to prove the commission of another crime by ■ defendants does not alter the rule. State v. Taylor, 118 Mo. 162; State v. Sanders, 76 Mo-. 36; 1 Greenl. on Evidence, sec. 108; 1 Wigmore on Evidence, sec. 218; State v. Perry, 136 Mo. 126; State v. Vinso, 171 Mo. 587; Wilkerson v. State (Tex.), 19 S. W. 903. (b) The evidence that, immediately after their’ escape from the penitentiary, the three defendants and Blake ran down the railroad track toward the freight depot of the Missouri Pacific Railroad Company, that they fired at the prison officials, police and citizens wlm tried to interfere, that they compelled a teamster to' drive them to' a distant part of Jefferson City, that they made resistance to the utmost, and were found in possession of three pistols, a quantity of ammunition, dynamite, nitroglycerin, caps, etc., was also' properly admitted. Such evidence has been held admissible in behalf of the State, and a proper subject of consideration by the jury. State v. Moore, 101 Mo. 330'; People v. Petmecky, 2 N. Y. Crim. 450; 4 Elliott on Evidence, sec. 2724; 1 "Wigmore on Evidence, sec. 276; Underhill on Crim. Evid., secs. 118 and 120; Bishop on Crim. Proc. (3 Ed.), sec. 1249; Wharton’s Crim. Evid. (9 Ed.), see. 750; Jamison v. People, 145 111. 376; State v. Shaw, 74 Vt. 153; Wills on Cir. Evid., 130-137; Com. v. Bittle, 200 Pa. St. 648 ; State v. Phillips, 118 Iowa 666; Waite v. State, 13 Tex. App. 180; People.v. Flannelly, 128 Cal. 87; Bowles v. State, 58 Ala. 335; People v. Fredericks, 106 Cal. 516; "Wharton on Homicide, sec. 710. (2) Mnrder committed in the perpetration of another felony, or in the attempt to commit another felony, is mnrder in the first degree. Even if the defendants armed themselves solely for the purpose of making their escape from prison (which no person can believe), still they were guilty of mnrder, which was committed as an attendant result of such effort to escape. Mayesv. People, 106 111. 306; State v. Bailey, 190 Mo. 288; Evans v. State, 100' Ala. 22; 2 Bishop’s New Crim. Law, sec. 641; 2 Wharton’s Crim. Law, sec. 1405; Martin v. State, 89 Ala. 118; Peden v. State, 61 Miss. 270; 1 Bish. Crim. Law, sec. 636; Boyd v. U. S., 142 U. S. 455; Ferguson v. State, 32 Ga. 658; State v. Walker, 98 Mo. 105; Kirby v. State, 23 Tex. App. 25. (3) No error was committed in the refusal of the defendants’ instruction 2. This instruction, in effect, told the jury that they could convict one of the defendants and acqnit the others. This instruction was clearly erroneous, in view of the evidence and all the evidence in this case. All three of the defendants testified in this ease; and the testimony of all was to the same effect. Each one admitted the conspiracy that was entered into by them to escape from prison, and to force their way .out if necessary; and each admitted that pistols, cartridges, dynamite, nitroglycerin, etc., had been sent to them to aid in their unlawful undertaking ; and each admitted that he took a loaded pistol and carried the same in his hand when the assault was made on the deputy warden. If either defendant had failed to testify, or if lie had testified denying the . above-named facts, then perhaps the trial court would have been justified in giving said refused instruction. But when each defendant testified, and admitted all that the State proved against him, then there was no conflict in the evidence, and it stood admitted, and admitted under oath by the defendants, that each was guilty of murder in the first degree. The fact that the defendants further testified that they did not intend to injure or kill anyone did not alter the’case, as the facts and circumstances* attending the assault showed the contrary. State v. Bryant, 102 Mo, 32; State v. Tabor, 95 M.o. 585'; State v. Nelson, 118 Mo, 126; State v. Pollard, 139 Mo. 2201; State v. Hancock, 148 Mo. 488; State v. Logan, 84 Mo. App. 584; State v. Dettmer, 124 Mo. 435,
   BURGESS, P. J.

Appeal from the judgment of the circuit court of Cole county, rendered January 2, 1906, upon a verdict convicting the defendants of the crime of murder in the first degree, the punishment for which is death.

The conviction was for having killed and murdered one John A. Clay, who was at the time a guard at the Missouri penitentiary and in the discharge of his duties as such.

The defendants and one Hiram Blake were, at the time of the commission qf the alleged crime', legally imprisoned in said penitentiary. Around the building’s and ground's of said penitentiary there is and was a high stone wall, and the entrances are in the west wall. A short distance north of the north wall are situated the tracks of the Missouri Pacific Railroad Company, and a few feet north of said tracks is the Missouri river. There are two- entrances referred to' by the witnesses in this case; one of them through the office in the administration building, entered the grounds through an ordinary door opening into an iron cage; and the other one being the wagon entrance. This last-named entrance was used by all vehicles that had occasion to go in and ont, and consisted of two sets of double doors, situated some distance from each other. On the 24th day of November, 1906, R. E. See was deputy warden, and John A. Olay, E. Allison, J. K. Young and John Bruner were guards at said prison. It was the duty of Clay to stand in the wagon entrance between the two double doors., inspect the contents of the various loads that passed through said entrance and attend to the locking and unlocking of the doors. See’s office was on the ground floor and opened out into the yard of the prison, and this yard opened into the, stockade, in which were located the prison shops, where the three defendants and Blake were working. About three o’clock in the afternoon of said day two gentlemen were admitted as visitors to the prison and were sitting in the deputy warden’s office talking to a prisoner, when the three defendants and Blake appeared at the door of said office, with pistols in their hands, and eom7 manded Deputy Warden See to hold up his hands, threatening to ldll him if he refused. See endeavored to draw his pistol, and one of the four convicts (perhaps Blake) fired his pistol, striking See in the wrist, and also wounding defendant Vaughan in the hand. Vaughan was in the act of grabbing See’s hand when Blake shot at See. See was then disarmed by them, dragged out of his office and ordered to march between Blake and defendant Vaughan to the wagon entrance; and the two visitors were also ordered to- march, one by the side of defendant Ryan, and the other by the side of defendant Raymond. The wagon, entrance was reached just as the inner doors were being opened to admit a two-horse wagon into the prison yard, and the four convicts rushed through said doors, taking with them See, and one of the visitors, the other visitor managed to get loose and escape. The four convicts ordered Clay, who was on duty at that point, to hold up his hands, which he did, and he was then ordered to hold his hands higher. Some one in the wagon entrace then fired at Clay, striking him in the neck and killing him instantly. As the space in this wagon entrance was tolerably dark, neither See nor the visitor could recognize who it was that fired said shot; but the man driving the team (Charles Woodland) testified positively that the defendant Yanghan was the first man to rush into said wagon entrance, and that Yaughan fired said shot. Several other shots were fired by defendants and Blake in said entrance, some of them so close as to burn See’s face with powder. The convicts ordered See to unlock the outside doors, but he told them he could not and did not know how; and finally suggested to them that he could show them a better way out through the office. The convicts then went with See up to a door that opens into this wagon entrance from the guard room, when Allison appeared at the door and ordered the men to throw up their hands, when one of the four shot and killed Allison. One of the four convicts then shouted, “Kill them all, let’s shoot our way out.” About that time one of them shot See in the shoulder and in the side, causing him to' fall to the ground. One of the convicts said, “Capt. See is dead. Now get to work, we are losing time.” Young was upstairs in the armory but immediately came down to ascertain, the cause of the disturbance. ITe saw the body of Allison on the. floor, he was walking towards the door opening into' the wagon entrance, when some one in said entrance shot him. Hearing the firing, Bruner ran to the inner doors of said entrance, and looked in through a small hole in said door. Some one in the wagon entrance commanded him to get away and shot at him. These four convicts then tried to use nitroglycerin on the outer doors of the wagon entrance. They were successful, and a large strip was blown off of one of said doors, making a hole sufficient in size for them to jump through and make their escape, which they did. After getting outside of the prison, the three defendants and Blake ran together towards the Missouri Pacific tracks, and along said tracks west towards the freight depot. See procured a gun and, in company with guard Bruner, followed them towards the depot. Bruner soon came within range of them, exchanged several shots with them, and wounded Blake in the leg. Blake was then captured and taken back to the prison, where he soon died from the effects of said wound.

In the meantime, the police of Jefferson City had been notified of this trouble, and had joined with prison guards and citizens in pursuit of the escaped convicts. The three defendants, seeing that Blake was disabled, jumped into a wagon and fired twice at Bruner and See. These defendants compelled the driver to get into the wagon with them, and began to whip the horses. Leonard Greene was standing near the wagon and undertook to stop the horses, when defendant Yaughan pointed his pistol at Greene and said, “Let go.” Greene promptly obeyed. Vaughan took the lines and drove as fast as he could in a southwest direction. He drove until Ryan fell out of the wagon and was captured. Before falling out of the wagon Ryan fired his pistol once at Moerschel, who had caught the team, and then twice at the police who were in pursuit. Moerschel let go of the horses ánd as soon as the other two defendants saw that the horses had. been released, they drove on until the driver fell out of the wagon, and some prison guards and police officers compelled said two defendants to surrender. At the time of the capture each defendant had a forty-four calibre pistol in his hand; and from forty to one hundred cartridges in his pocket; and the defendant Yaughan had a stick of dynamite, a bottle of nitroglycerin and some fuse and caps.

The State’s evidence further showed that John A. Olay’s death was caused by a gunshot wound in the neck, which was made by a bullet from a forty-four calibre pistol.

The three defendants testified in their own behalf, and the substance of their testimony was to the effect that a few days prior to the commission of the alleged crime they were in the same cell in the prison and agreed with Blake to make an effort to' escape. That a friend (whose name they declined to give) had sent them the pistols, cartridges, nitroglycerin, dynamite, etc., which they took for the purpqse of frightening the prison officials. They further testified that it was distinctly agreed between them that no> one should be hurt or killed. They admitted that they went to the deputy warden’s office, covered him with their pistols, that Blake shot See in the wrist, that they marched with See to the wagon entrance, where they and Blake fired their pistols a number of times. That they compelled Deputy Warden See and a visitor to go with them to the wagon entrance, compelled Olay to hold up his hands, and that Clay and Allison were shot. Each one of the three defendants denied that he shot either Olay or Allison, and each expressed the opinion that Blake did it. They admitted that they blew open the outside door, with nitroglycerin, passed through the opening, ran west to the freight depot, jumped into a wagon and compelled the driver to take them to the southwest part of the city, where they were captured.

The court over the objection and exceptions of defendants instructed the jury as follows:

“1. The court instructs the jury that the defendants are presumed to be innocent, and it devolves upon the State to prove their guilt beyond a reasonable doubt, and unless the State has established the guilt of the defendants, as charged in the indictment, to your satisfaction and beyond a reasonable doubt, you should give the defendants the benefit of such doubt, and return a verdict of not guilty. But such doubt, to authorize an acquittal on that ground alone, should be a substantial doubt of guilt arising from the evidence in the case, and not a mere possibility of innocence.
“2. The court instructs the jury that if they believe and find from the evidence, beyond a reasonable doubt, that on the 24th day of November, 1905', the defendants and another person named Hiram Blake were confined as prisoners in theMissduri StatePenitentiary, in Cole county, Missouri, and while so confined agreed with each other to make or attempt to make an escape from prison, and in so doing and while acting in concert with each other and in the furtherance of a common design to make such escape, either one of the four persons so attempting to escape did, in the presence of the other three, wilfully, feloniously, deliberately, premeditatedly and of malice aforethought kill John A. Clay, in the county aforesaid, while he was in the peace of the State and in the discharge of his duties as a guard at such penitentiary, by shooting him upon the neck or head with a pistol and thereby inflicting upon him a mortal wound of which he then and there instantly died, then they will find all three of the defendants, Harry H. Vaughan, alias Harry Vaughn, George Ryan, alias Charles Stevens, and Edward Raymond guilty of murder in the first degree and so state in their verdict.
“3. The court further instructs the jury that if they believe and find from the evidence in this cause, beyond a reasonable doubt, that one Harry H. Vaughan, alias Harry Vaughan, in Cole county, Missouri, on the 24th day of November, 1905, feloniously, wilfully, deliberately, premeditatedly and of his malic© aforethought, shot with a pistol, and by such shooting killed John A. Clay, and that the defendants, George Ryan, alias Charles Stevens, and Edward Raymond, were then and there present, feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought, aiding and abetting, advising, counseling, assisting or procuring the said Harry H. Vaughan, alias Harry Vaughn, in such shooting and killing, then defendants George Ryanj alias Charles Stevens, and Edward Raymond were, within the meaning of the law, each- as guilty as if he had fired the fatal shot himself.
<£4. The court instructs the jury that while it is necessary for the killing" to he willful, deliberate, premeditated and with malice aforethought, in order- to constitute murder in the first degree, yet these elements need not be proved by direct evidence but may be deduced from all the facts and circumstances attending the killing, and if you can satisfactorily and reasonably infer their existence from all the evidence in the case, beyond a reasonable -doubt, you will be warranted in so-finding.
“5. As used in the indictment and these instructions, ‘feloniously’ means wrongfully and wickedly and also- refers to- the punishment imposed by law.
“ ‘Wilfully’ means intentionally and not done by accident.
“ ‘ Premeditatedly ’ means thought of beforehand, for any length of time, however short.
“ ‘Deliberately’ means done in a cool state of the blood, not in sudden passion, engendered by lawful or some just cause of provocation. And the court instructs the jury that in this case there is no evidence tending to show the existence- of any such passion or provocation.
“ ‘Malice’ means that condition of the mind which prompts one to do- a wrongful act intentionally, and to take the life of another without legal justification or excuse. It does not mean mere spite, hatred or ill-will, but it signifies the state of disposition which shows a heart regardless of social duty and fatally bent on mischief, and ‘malice aforethought’ means that the act was done with malice and premeditation.
“ ‘Malice,’ as used here, may be presumed from the intentional use of a deadly weapon in a manner likely to produce death.
“6. The jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining as to the credit you will give a witness, and the weight and value you will attach to a witness’s testimony, you should take into consideration the conduct and appearance of the witness upon the stand, the interest of the witness, if any, in the result 'of the trial, motives actuating the witness in testifying, the witness’s relation to or feeling for or against the defendant, or the alleged injured party, the probability or improbability of the witness’s statements, the opportunity the witness had to observe and to be informed as to matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully or otherwise as to matters within the knowledge of such witness. All these matters being taken into account with all other facts and circumstances given in evidence, it is your province to- give each witness such value and weight as you deem proper. If, upon a consideration of all the evidence, you conclude that any witness has sworn wilfully falsely as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part of such witness’s testimony.
“7. The defendants are competent witnesses in their own behalf, but the fact that they are the defendants, and, as such, interested in the result of this case, may be considered by you in determining the credibility of their testimony.
“8. The court instructs the jury that under the evidence in this case you will find the defendants guilty of murder in the first degree or acquit them; and you are further instructed that if you find the defendants guilty of murder in the first degree, you will simply say so in your verdict, as you have nothing whatever to do with the punishment. If you find the defendants not guilty you will return a verdict to that effect. ’ ’

And to the giving of which said instructions by the court the defendants, by counsel, then and there duly excepted at the time.

And the court, at the request of the defendants, through counsel, gave to the jury the following instructions, to-wit:

“1. The jurors are instructed that the indictment in this case is of itself a mere formal accusation or charge against the defendants and is not of itself any evidence of the guilt of the defendants, or of any one of them, and no juror should permit himself to be to any extent influenced against any of the defendants because or on account of the indictment in the case, nor by reason of the fact that they were convicts in the Missouri State Penitentiary when the killing charged in the indictment occurred.
“3. The court instructs the jury that the law presumes the defendants in this case to be innocent of murder in the first degree and clothes him or them with such presumption of innocence throughout the trial; and you should act on such presumption and acquit the defendants unless the State, by evidence, satisfies you of his or their guilt beyond a reasonable doubt.
“9. The court instructs the jury that the mere presence of a person at the scene of a homicide, or even his presence and approval thereof, do not make him a guilty participator in said homicide. To make him a guilty participator he must have aided, assisted, instigated, abetted or advised said killing as explained in other instructions given by the court in this case. ’ ’

And the defendants prayed the court to' give to the jury the following instructions, which the court refused to do, to-wit:

“2. The court instructs the jury that they are at liberty to find one or more of the defendants guilty and others not guilty, as they may deem right and proper under the instructions of the court and the evidence in the case.
“4. The court instructs the jurors that if they have a reasonable doubt (as that term is defined in other instructions given in. the case) as to any one .or more of the defendants on trial being guilty of murder in the first degree, as that offense is defined in other instructions given in this case, the jurors will acquit such defendant or defendants as to whom such doubt is entertained.
‘ ‘ 5. The court instructs the jurors that in considering their verdict they will exclude from their consideration all matters in evidence relating to the death of E. A. Allison and the shooting of J. O. Young (referred to in the testimony) and also all the evidence before the jurors relating to the pursuit and capture of den fendants after their escape from the penitentiary on November 24, 1905.
“6. If the defendants hilled John A. Clay, the deceased, with premeditation and malice aforethought but without deliberation (as those terms are defined in other instructions given in the case), then they are not guilty of murder in the first degree, but of murder in the second degree, and if the jurors find them or either of them to be guilty of murder in the second degree, they will assess the punishment therefor in the State penitentiary for a term of imprisonment of not less than ten years.
“7. If the jurors believe and find from the evidence that co-defendants Vaughan, Raymond and Ryan, and one Blake, were .on November 24, 1905, and had been previous thereto convicts in the Missouri State Penitentiary; that while so confined in said prison they agreed and combined together to effect their escape .therefrom, but that it was expressly understood and agreed among them that no officers or guards of the prison should be killed or injured in effecting such escape; but that said escape should be effected solely and wholly by means of intimidating said officers and guards and thereby compelling them to let them, said convicts, outside of the prison enclosure; and if the jury further find that while said convicts were carrying out said purpose or plan of escape, the deceased, John A. Clay, was killed by one of the defendants; and that said act of killing was a departure from the purpose and plan agreed on by said Blake and the defendants in effecting their escape and was not within their joint purpose and plan in so making their escape, and if said killing was not advised, counseled, instigated, aided or abetted by the defendant or any of the defendants on trial, then said defendant (or defendants) not so instigating, counseling, abetting, aiding or advising said killing, is not guilty of the offense charged in the indictment in this case.
“8. If the person mentioned in the evidence as Blake shot and killed the deceased John A. Clay, and said killing by said Blake was- a departure from the purpose and plan of the defendants now on trial, and said Blake, in effecting their escape from the Missouri penitentiary, was not within their joint purpose or plan in making said escape, and these defendants or one or more of them did not advise, counsel, or instigate or aid Blake to kill the deceased, but said Blake did said killing of his own motion, then said defendants or defendant not so advising, counseling, aiding or instigating said killing are not guilty under the indictment in this case.
“8£. If the defendant Vaughan shot and killed the deceased, John A. Clay, and said killing by said Vaughan was a departure from the joint purpose or plan of the defendants on trial and one Blake in effecting their escape from the Missouri penitentiary on November 24, 1905, and was not within their said joint purpose or plan in making their escape, and the defendants Ryan and Raymond did not advise, counsel, instigate or assist said Vaughan to kill the deceased, but said Vaughan did said killing of his own motion, then said co-defendants Ryan and Raymond are not guilty under the evidence in this case, and the jurors will return a verdict of not guilty as to them.”

To the refusal of the court to give said instructions the defendants then and there duly excepted at the time.

It is insisted that the court erred in permitting the State to introduce over the objections of defendant evidence of the killing of E. A. Allison. Allison, Olay and Bruner were all guards at the penitentiary and the killing of the first two was in pursuance of the unlawful agreement of defendants to intimidate the- officers of the prison in order to enable them to escape therefrom, and evidence as to the killing of Allison was part of the res gestae. “Everything occurring contemporaneously with the main difficulty was a part of the res gestae, and there was no error in the admission of such evidence.” [State v. Woodward, 191 Mo. 1. c. 633.]

It was admissible upon the further ground that the homicide was committed in furtherance of the success of the agreement or understanding between the defendants and Blake to commit a felony, that is, to forcibly break and escape from the penitentiary. [Sec. 2067, R. S. 1899.]

Nor was it necessary to the introduction of this evidence that it be shown that there was a pre-arranged understanding to kill or shoot Allison, for when two or more persons enter upon an unlawful undertaking, with a common purpose, to aid and assist each other in whatever may grow out of the undertaking, each is responsible, civilly or criminally, for everything which may proximatelv result from such unlawful purpose, whether contemplated at the time the arrangement was made or not, and whether actually performed by all or any one of the wrongdoers.

“If several conspire to do an unlawful act, and death happens, in the prosecution of the common object, they are all alike guilty of the homicide. Each is responsible for everything done, which follows incidentally in the execution of the common purpose, as one of its probable and natural consequences, even though it was not intended, or within the reasonable contemplation of the parties, as a part of the original design.” [Evans v. State, 109' Ala. 1. c. 22; 2 Wharton, Grim. Law, sec. 1405.]

No point is made by counsel for defendants upon the instructions given in behalf of the State, but it is earnestly insisted that the court erred in refusing instructions asked by defendant.

It is insisted that instruction number two asked by defendants should have been given and a separate finding or verdict as to each one required, because each of them had the right to have his ease passed upon by the jury, as if he alone were upon trial. As the case went to the jury this phase of it was not submitted to them, in the absence of which the jury may have believed that it was their duty under the evidence and instructions to find the defendants all guilty or to acquit them all. While it may be true that they were all alike guilty, were they not entitled to have the jury instructed that they were at liberty to find one or more of them guilty and others not guilty, as they might believe from the evidence? We think they were. It is no answer to this suggestion to’ say that under the evidence they were all alike- guilty, for that question was for the consideration of the jury, and it was their province if so inclined to have acquitted either one or all of them, or to have acquitted some of them and found the others guilty, or guilty of a less degree of crime than that charged, notwithstanding the- evidence to the contrary.

' State- v. Ostrander, 30 Mo. 13, was a prosecution under an indictment charging murder in the first degree, and although no instructions were given bearing upon murder in the second degree, and the evidence clearly showed the defendant to be guilty of murder in the first degree, a verdict returned by the jury finding the defendant guilty of murder in the second degree was held to be responsive to the indictment, and that the trial court was bound to receive it. Each one had a right to have the jury pass upon his guilt or innocence, and the evidence considered by the jury in regard to his particular case, unbiased or uninfluenced by the evidence in respect to the guilt oí. his co-defendan ts.

In the case at bar the jury might have convicted a part of the defendants, and disagreed as to the others, or have acquitted a part of them and convicted or failed to agree as to- the others, had they been so instructed. [1 Bishop’s New Criminal Proc. (4 Ed.), sec. 1036; State v. Kaiser, 124 Mo-. 651.]

In Abrams v. State, 121 Ga. 170, Abrams and one Osbum were jointly indicted for grand larceny. They were tried together and both were convicted. The point was made in the motion for a new trial that the court failed to instruct the jury distinctly that they might acquit one of the accused even though the other was convicted. The Supreme 'Court held that it was erroneous, under the peculiar facts of the case,- to fail to instruct the jury distinctly, though one of the accused were found guilty, the other might nevertheless be acquitted.

In State v. Daniels, 115 La. Ann. 59, it is held that' where three persons are being prosecuted at the same time and under the same indictment, the jury ought to be instructed that one or two may be convicted or acquitted without the conviction or acquittal of the other or others.

Our conclusion is that this instruction or one of similar import should have been given, in view of the first instruction given on the part of the State.

There was no- error in refusing instruction number four asked by defendants, because the same question presented by it was fully covered by the State’s first instruction.

Nor was there error in refusing either instruction numbered seven, eight or eight and a half asked by defendants, because according to their own testimony they were all equally guilty of murder in- the first degree, and no less grade of that offense. The mnrder .was committed in the perpetration of another felony, that is, in breaking out of the penitentiary where the defendants were legally confined, in accordance with a previous concerted plan, to make their escape. “When an action, unlawful in itself, is done with deliberation, and with intention of mischief or great bodily harm to some particular person, or of mischief indiscriminately, fall where it may, and death ensues from such act, against or beside the original intention of the party, it will be murder.” [Mayes v. People, 106 Ill. l. c. 313.] That case was cited approvingly by this court in State v. Bailey, 190 Mo. 257.

The Supreme Court of Mississippi said: “It matters not that the purpose to kill Walker was not entertained by all or by any at the outset. £ If two' or more combine to do an unlawful thing, and the act of one proceeding, according to- the common plan, terminates in a criminal result, though not the particular result intended, all are liable” ‘All who are responsible for what is done unlawfully are so for its entire consequences, whether contemplated or accidental.’ ” [Peden v. State, 61 Miss. 1. c. 270.]

In Boyd v. United States, 142 U. S. l. c. 455, it is said: “If a number of men agree to do an act which, from its nature or the way it is to be done, is an act that will put human life in jeopardy, then the putting of human life in jeopardy, or the destruction of human life, is a necessary and a natural and a probable consequence of the act agreed to be done by the party, and upon the principle of the law I have already announced to you, it' is but equal and exact justice that all who' enter upon an enterprise of that kind should be responsible for the death of an innocent person that transpires because of the execution of the enterprise then entered upon, and because that enterprise is one that would naturally and reasonably produce that result.”

In State v. Walker, 98 Mo. 95, this court held that one of a number of conspirators was properly convicted of murder of one Green, committed by another member of the conspiracy, when the object of the conspiracy was to take William Edens out of the house and whip him. '

Another case strongly in point is Kirby v. State, 23 Tex. App. 13. In that case the defendant and two-others were indicted for the murder of the jailer, who had them in jail. ‘ ‘ One Cannon was also- a prisoner in said jail, and it was agreed between Cannon, the defendant and a third prisoner that Cannon was to assault the jailer and get his pistol and keys away from him and unlock the- cell door and allow the defendant and the third prisoner to- escape from jail in company with Cannon. The defendant procured an iron rod, around which he wrapped a wet towel, concealed the same for a time and then hung the iron rod with the towel around it out in the corridor where Cannon could reach the same. When the jailer1 came into- the corridor, Cannon seized the iron rod and struck the jailer several blows on the head, from the effects of which he died. A witness near1 the jail heard someone call out, ‘Help,’ heard another voice say, ‘Kill him,’ and heard another say, ‘Don’t shoot him.’ After striking the jailer, Cannon made his escape and failed to unlock the door opening into-the defendant’s cell; so defendant and his companion never got out of said cell. ’ ’ A trial of the- defendant upon the charge of murdering the said jailer resulted in his conviction, and in affirming the case, the- appellate court said: “As stated, we- have-in the evidence before us a common -design- to escape from jail, preparations to effect that purpose, a deadly weapon prepared as a means to be used if necessary in the accomplishment of the common purpose, the use of the deadly weapon by one- of the parties in endeavoring to carry out the common design. Such a homicide, committed under such circumstances, is not a collateral, independent act of the actual perpetrator, but is the act of all, because it was an act directly incident to and growing out of the common design of all.”

These instructions were correctly refused upon the further ground that the testimony upon which they were predicated, to the effect that it was distinctly agreed between the -defendants and Blake that no one should be hurt or killed in their effort to break out of the prison, was so inconsistent with the physical facts disclosed by the record as to justify the court in refusing them. As was said by-Sherwood, J., in State v. Pollard, 139 Mo. 1. c. 228: “Heretofore we have said, and we have frequently repeated the observation, that neither courts nor juries are- required to yield credence to the statements of a witness who-, to save himself from justly merited punishment, challenges the array of all the physical facts in the case, and then boldly invokes instructions based upon such simulated evidence. [State v. Anderson, 89 Mo. l. c. 332; State v. Gilmore, 95 Mo. l. c. 565; State v. Bryant, 102 Mo. 24; State v. Turlington, Ib. l. c. 663; State v. Nelson, 118 Mo. l. c. 127; State v. Brown, 119 Mo. l. c. 538, and numerous other cases.] ”

The court correctly restricted the instructions to murder in the first degree, as there was no evidence to justify instructions for any less offense.

For the reason intimated the judgment is reversed and the cause remanded for further trial in accordance with the views we have expressed.

All concur.


author: GANTT, J.

text:
    THE STATE v. DENNIS WILSON, Appellant.
    Division Two,
    December 4, 1906.
    1. BILL OF EXCEPTIONS: Extension of Time: Lost Order: Supplying Record. It requires judicial action, upon due notice, to supply the lost part of the record of the trial court; and that cannot he done in the appellate court, after appeal, but must be done in the trial court. So that where appellant was given until a certain date to prepare and file his bill of exceptions, and before that date obtained from the trial judge a written order directing the extension of that time to a later date and filed that order with the clerk, who failed to enter it upon the record of the court, that lost record cannot be supplied in the appellate court by ex parte affidavits of the judge and appellant’s attorney showing that the order was made and filed with the clerk of the trial court within the time allowed. The affidavits are no part of the record, and unless the attempt was made in the trial court, after notice^ to supply the lost order as a part of the record, the bill of exceptions will be held not to have been filed within time.
    2. SPECIAL PROSECUTING ATTORNEY: Qualification. The law authorizes the trial court, where the regular prosecuting attorney has been employed as counsel for defendant, to appoint some other attorney to prosecute the case; and in the absence of any affirmative showing to the contrary, it will not be assumed that the attorney so appointed did not qualify in obedience to the statutory requirements.
    Appeal from Vernon Circuit Court. — Hon. L. W. Shafer, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which is duly verified hy both the affidavit of the temporary prosecuting attorney and also that of Ed. Shelton, is sufficient in form and substance. State v. Lawn, 80 Mo. 242; Kelley’s Grim. Law, sec. 642. The regular prosecuting attorney having been of counsel for the defendant, it was proper for the trial court to- appoint Mr. Scott prosecuting attorney for this ease; and Mr. Scott then possessed all of the powers of the- regular prosecuting attorney. R. S. 1899, secs. 4955 and 4957; State v. Moxley, 102 Mo. 383; State v. Griffin, 87 Mo. 616. This court will presume that the trial court selected a suitable attorney to act as prosecutor, and that he was sworn to faithfully discharge his duties; especially in the absence of a showing to- the contrary. State v. Fitzporter, 17 Mo. App. 273. (2) At the outset of the argument, counsel for the State insists that there is nothing before this •court for review except the record proper. No order appears of record extending the time from August 15, 1905, to the second day of the October term, 190-5; and there is no paper among the court files showing that such an order was made- by the judge of said court. It is therefore urged by counsel for the State that such a record can not be supplied by ex parte affidavits made by the attorney for defendant, and by the judge of the court. Even if the affidavits were sufficient to- satisfy this court that the judge of that court made such an ' order in vacation, there is no proof that the order' was ever copied on the record; in fact, the record shows that such order was never copied thereon. Our statute requires that when it is desired to have the time for filing a bill of exceptions extended, it is necessary for the judge of the court to make such an order in vacation and that the- same shall be copied on the- record. R. S. 1899, sec. 728; State v. Eaton, 191 Mo-. 151. It is further insisted that if an order was made extending the time, and the same has been lost or destroyed, the lost record cannot be supplied by this court. In a case where an indictment was lost or destroyed either during or just after the trial, and an alleged copy was copied into the transcript by the clerk, this court said: “A lost indictment, like any other record, may be supplied by the court of whose record it constitutes a part. . . . It follows that it was the duty of the defendant to have the indictment certified to this court and if lost or destroyed without his knowledge or connivance, if he desired to have this court pass upon its sufficiency, he should have taken appropriate steps to supply it in the circuit court, which had the power to do so, even at a subsequent term.” State v. Burks, 132 Mo. 367. The authorities, and all the authorities, hold that the trial court must supply the lost or destroyed record. State v. McC'arver, 92 S. W. 690; State v.^ Simpson, 67 Mo. 647; Newton v. Strong, 48 Mo. App. 542; State v. Logan, 125- Mo. 25'.
   GANTT, J.

J. R. Moss, Esq., the regular prosecuting’ attorney of Yernon county, having been of counsel for the defendant, the circuit court of that county, by an order entered of record on the 21st day of February, 1905, appointed Levi L. Scott, Esq., special prosecuting attorney for the purpose of this prosecution, under and by virtue of sections 4955 and 4957, Revised Statutes 1899', and thereafter, on February 23, 1905, Mr. Scott, as such special prosecuting attorney, filed an information, duly verified by himself, and accompanied by the affidavit of Edward Shelton, wherein he charged the defendant with grand larceny, in feloniously taking, stealing and carrying, away thirteen head of neat cattle; to-wit, thirteen two-year old steers, in Yemen county, on the 22nd day of September, 1904. The defendant was arrested and duly arraigned and entered his plea of not guilty, and at the same term was put upon his trial and convicted and his punishment assessed at four years in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the defendant was sentenced to the penitentiary. From that sentence he appeals.

I. At the very threshold of our investigation of this record, we are confronted by the contention of the Attorney-General that the bill of exceptions .is no part of the record, for the reason that it was not filed in time. The facts appearing in the transcript disclosei that the defendant was convicted on March 3, 1905, at the February term of the Vernon court; he was granted an appeal, and was given until the first day of the next regular term to file his bill of exceptions. On the first day of the regular May term, 1905, of said court, the court, for good cause shown, ordered that the time for filing the bill should be extended to August 15, 1905. There is no order of record extending the time for filing the bill of exceptions from August 15 to the second day of the October term, and the clerk certifies to no such order having been filed with him in vacation, but he has certified to this court as a part of his transcript the affidavit of Mr. King, one of the counsel for the defendant in this cause in the circuit court, to the effect that on or about the last day of July, 1905, he prepared an order to be signed by the judge of the circuit court of Vernon county, extending the time for filing the bill of exceptions in this case from August 15, 1905, to the second day of October term, 1905, of the circuit court of said county, and mailed said order to Hon. L. W. Shafer, the judge of said court at Greenfield, Missouri, the postoffice address of said judge; with the request that he sign and return the same to the clerk of the circuit court of Vernon county, and that he afterwards met Judge Shafer on the tenth day o'f August, 1905, in the city of Nevada and was informed by Judge Shafer that he had signed said order extending the time for filing said bill of exceptions and filed the same with the clerk, of the circuit court of Vernon county. Affiant further states that on the eleventh day of August, 1905, he called at the office of the clerk of the c'rcuit court of Vernon county, Missouri, and made inquiry as to whether said order had been deposited by the said judge, with the clerk, and was informed by said clerk that the said order was filed and recorded in the clerk’s office. A certificate of Judge Shafer, filed with the clerk, is also incorporated in the transcript wherein he certifies that on the tenth of Angnst, 1905, he as said judge signed an order extending the time for filing the hill of exceptions in. the case of the. State of Missouri against Dennis Wilson, and deposited the same with the clerk of the circuit court of Vernon county, and requested that the same he filed and placed upon the record of said court in vacation. On the second day of the October term, 1905, the court made another order extending the time for filing the bill to January 1, 1906. The record then recites other extensions to and including March 10th, 1906, and- that after-wards on the tenth day of March, 1906, it -being the eighteenth day of the February term, “State of Missouri, plaintiff, v. Dennis Wilson,” defendant. “On this day comes the defendant by attorney and files his bill of exceptions in the above-named cause.”

Conceding that Judge Shafer made the order on ' the tenth day of August, extending the time for filing the bill from August 15, 1906, to the second day of the October term, 1905, and that the same had been lost or mislaid at the time the clerk made out his transcript for this court, and that Judge Shafer and Mr. King were advised of the loss of the said order, we think it is too clear for discussion that the affidavit of Mr. King and the certificate of Judge Shafer could not supply this defect in the record. Inasmuch as the law provides for the making and filing of such order in vacation and requires the clerk to treat the same as a part of the record in certifying the transcript to this court, we think a liberal construction of section 728, Revised Statutes 1899, would require that from the time of the filing of such order in vacation, it becomes a part of the record. Being a part of the record then, it was competent for the court, upon due notice to both parties, to supply the lost document by a judgment of the court just as any other lost record may be supplied by the court of whose record it constitutes a part, but it cannot be done, as . wie have already said, by the filing of ex parte affidavits with, the clerk in vacation, or in the court in session. It requires judicial action upon due notice, to supply the lost record. [State v. Burks, 132 Mo. l. c. 367; State v. McCarver, 194 Mo. l. c. 739; State v. Simpson, 67 Mo. 647.] It is clear that this court has no power on appeal to supply any portion of the lost record of the circuit court. [State v. Eaton, 191 Mo. 151.] It follows, therefore, that in the present state of the record, there appears no valid order extending the time for the filing- of hill from August 15, 1905’, to the second day of October term, 1905, and that any subsequent extension of the time by the court after the lapse of the order extending the time to August 15, 1905, was without authority of law. [State v. Scott, 113 Mo. l. c. 561; State v. Apperson, 115 Mo. 470; Burdoin v. Town of Trenton, 116 Mo. 370.] Accordingly, the bill of exceptions filed after that date cannot be considered as before us for review.

In view of these facts, it must be held that none of the matters of exceptions attempted to be preserved by the bill of exceptions are before us for consideration, and we are restricted to such errors, if any, as may appear upon the face of the record.

II. Looldng, then, to the record proper, the information is amply sufficient on its face_ to charge grand larceny, and is duly verified both by the affidavit of the special prosecuting attorney and the affidavit of the prosecuting witness, Mr. Shelton. That the special prosecuting attorney was duly appointed appears from the record of the court on the twenty-first of February, 1905, wherein it is recited that Mr. Moss, the regular prosecuting attorney of the county, had been employed as counsel by the defendant and for that reason the court appointed Mr. Scott as special prosecuting attorney for this ease. Section 4955, Revised Statutes 1899, provides: “If the prosecuting attorney . . . be interested or shall, have been employed as counsel in any case where such employment is inconsistent with the duties of his office, or shall he related to the defendant . .. . either by blood or by marriage, the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause.” And section 4957, Eevised Statutes 1899', provides: “The person thus appointed shall possess the same power and receive the same fees as the proper officer would if he were present.” That a special prosecutor appointed by virtue of these sections has all the power for the purposes of the case in which he is appointed as the regular prosecuting attorney, there can be no doubt. [State v. Griffin, 87 Mo-. 1. c. 615, 616; State v. Moxley, 102 Mo. 1. c. 383, 384.] And in the absence of any affirmative showing to the contrary, we are not at liberty to assume that the special prosecutor, who was appointed by the court in this case; after reciting the disability of the regular prosecuting attorney, did not qualify in obedience to the statutory provisions. [State v. Fitzporter, 17 Mo. App. 1. c. 273.]

An examination of the record proper discloses no error in the impaneling of the jury, the return of the verdict, and the sentence of the court, and the judgment of the circuit court must, therefore, be and is hereby affirmed.

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


text:
    THE STATE v. CORDRAY, Appellant.
    Division Two,
    December 4, 1906.
    1. FORGERY: Legal Efficacy of Forged Instrument. It is essential to an indictable forgery that tbe alleged forged instrument possess some apparent legal efficacy.
    2. -: -: Indictment. An indictment for forgery describes tbe alleged forged instrument, first, as a “lease,” but does not express tbe length of time it is to run, and expresses no consideration therefor; second, as a “chattel mortgage,” but shows that it conveys no personal property, and names no debt upon failure to pay which it may be foreclosed; third, as an “assignment,”- but does not state what goods are assigned nor where they are located. Keld, that the instrument alleged to have been forged would, if genuine, possess no legal efficacy, and, therefore, the indictment charges no offense.
    Appeal from Buchanan Criminal Court. — -No». B. J. Casteel, Judge.
    Reversed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The indictment is sufficient in form and substance, and follows the language of the statute. R. S. 1899, sec. 2009; State v. .Gullette, 121 Mo. 447; Kelley’s Crim. Law, sec. 780'. -
   GANTT, J.

On' June 23, 1905', the grand jury of Buchanan county returned an indictment against the defendant, charging him with forgery in the third degree, to-wit, the unlawfully making and forging a certain lease and' chattel mortgage and assignment, purporting to be an act of one J. Herety, to the Union Mercantile Company, with intent to defraud, etc.

The defendant was arrested and duly arraigned and entered his plea of not guilty, and was tried and convicted at the September term, 1905, of the criminal court of Buchanan county. In due time he filed his motion for a new trial, which was taken up, heard and overruled, and thereupon he filed a motion in arrest of judgment, which was also overruled, and the defendant sentenced to the penitentiary for a term of two years in accordance with the verdict of the jury. Leave was given the defendant to- file a bill of exceptions during the next term of the criminal court of said county, but he did not avail himself of that privilege, and hence this appeal presents nothing for review by this court except the record proper. The defendant is not represented in this court by counsel, but in obedience to the statute we have examined the record proper.

There is perhaps no- proposition in criminal law upon which there is more imanimity of opinion among text-writers and the courts of last resort than that pertaining to the essentials of what is necessary to constitute an indictable forgery, and that one of these essentials is that the alleged forged instrument shall possess some apparent legal efficacy. Thus, Mr. Bishop in his Criminal Law (7 Ed.), vol. 2, sec. 533, says: “Toconstitute an indictable forgery, it is not alone sufficient that there be a writing, and that the writing be false; it must also be such as, if true, would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud.”

Blackstone defines forgery to be “the fraudulent making or alteration of a writing to the prejudice of another man’s right.”

In 13 Am. and Eng. Ency. Law (2 Ed.), 1082, it is said: “ Forgery is the false making, or alteration with fraudulent intent, of any writing, by which the party committing the act may wrong-fully obtain something of value to the prejudice of another’s rights because of the apparent legal efficacy of the writing and its capacity to deceive.” This court, in State v. Warren, 109 Mo. 430, ruled that the intent to defraud is an essential element of the crime, and must be averred and proved. Both at common law and in the highest courts of the several States of the Union, it has uniformly been held that in order to be the subject of forgery, the instrument upon its face must, if it were genuine, be of some apparent legal efficacy for injury to another, and if on its face it is utterly valueless and of no binding force or effect for any purpose of harm, liability or injury to anyone, it cannot'be the subject of forgery. [Colson v. Com., 110 Ky. 233; King v. State, 43 Fla. l. c. 218, 219; 19 Cyc. Law and Proc., 1379, and cases cited in note 94.] In People v. Tomlinson, 35 Cal. 503, it was said by the court: “The purpose of the statute against forgeries is tO' protect society against fabrication, falsification, and the uttering, publishing, and passing of forged instruments, which, if genuine, would establish or defeat some claim, impose some duty, or create some liability, or work some prejudice in law to another in his rights of person or property. Hence, without much conflict, if any,'it has been held from the ■ outset that the indictment must show that the instru- - ment in question can be made available in law to work the intended fraud or injury. If such appears to he the case upon the face of the instrument, it will be sufficient to set it out in the indictment; but if not, the extrinsic facts, in view of which it is claimed that the instrument is available for the fraudulent purpose alleged in the indictment, must be averred. If the indictment merely sets out an instrument which is a nullity upon its face without any averment showing how it can be made to act injuriously or fraudulently, by reason of matter aliunde, no case is made. This rule is so well settled by the precedents, that we do not feel called upon to discuss it upon principle.” And to the same effect is Burden v. State, 120 Ala. 388; Howell v. State, 37 Tex. 591. Tested by the foregoing statements of the law, would the instrument set forth in full in the indictment in this case have any legal efficacy if it had been genuine ? It is described in the indictment, first, as a “lease,” but when we look at its terms, no length of time is fixed for the lease to run and no consideration therefor is expressed; on the contrary, it recites that it is for “--■ — months,” and then, when the alleged consideration is reached), it provides, “On leaving the order for said goods,--dollars, on the delivery of the same-dollars, and every week thereafter the sum of —— dollars. ’ Again, it is purported to be for the rqnt of household goods and jewelry, hut what household goods and jewelry is nowhere mentioned, set forth or included in the covenants and agreements contained in the said instrument. As a lease it is utterly without any legal efficacy. It is also charged to have been a “chattel mortgage,” but a reading of the document alleged to have been forged will demon-state that it conveys no personal property, and names no debt upon the failure to pay which the same may be foreclosed by the mortgagee. The instrument is utterly silent as to the amount of any mortgage debt. It is also denominated in the indictment as an “ assignment,” but the so-called goods and chattel which were assigned are referred to as household furniture, wearing apparel, carpets, pictures, pianos, and chattels now in and about the residence of the undersigned, at number ---, and there are no allegations in aid of the instrument showing or tending to show in what house or in what place or what household furniture or wearing apparel were in said house. The instrument does further purport to sell and assign all the salary and wages of some person that are due and to become due from some unnamed person.

Without further elaborating the defects and insufficiency of this instrument, it is sufficient to say that if it had been genuine, it would have had no legal efficacy whatever, and would have bound no person to have paid any rent in any definite sum or at any definite time whatever, and, as a chattel mortgage, would have amounted to no more than a blank piece of paper. As the indictment sets forth the alleged instrument in its very words without any averment showing in the most remote manner how it could have been made to act injuriously or fraudulently by reason of matter aliunde, it must be held that it charges no offense against the laws of this State, because the instrument alleged to have been forged was and is of no legal validity, and as this appears upon the face of the record proper, it must be held that the indictment is insufficient to support the judgment and sentence of the court and the verdict of the jury, and the judgment is therefore reversed and the prisoner discharged.

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