author: BEEVES, C. DAVID E. BLAIR, J.

text:
    THE STATE v. CHARLES ELLIS, Appellant.
    Division Two,
    November 19, 1921.
    1. APPEAL: No Brief or Assignments. On an appeal from a judgment in a felony case, where no brief is filed, no assignment of errors is made, and no motion in arrest of judgment was filed below, the Supreme Court looks to the motion for a new trial alone to determine whether error sufficient to warrant reversal occurred at the trial.

      2: DEMURRER IN CRIMINAL CASE. A defendant in a felony case who introduces testimony in his own behalf is in no proper position to challenge the overruling of his demurrer offered at the close of the State’s case; but if in hm motion for a new trial he challenges the sufficiency of the evidence on the whole record to sustain a conviction, that question is presented for review on appeal.
    3. CONSPIRACY: Murder. A conspiracy to commit murder may be inferred from the facts and circumstances in evidence. If the facts and circumstances are sufficient to authorize the inference that defendant and his companion acted in pursuance to a common purpose to commit murder, a verdict of guilty will be upheld, although the companion did the actual shooting.
    4. INSTRUCTION: Murder in Second Degree. Where the evidence tends to show murder in the first degree, and defendant is convicted of murder in the second degree, he cannot complain that a proper instruction on murder in the second degree was given, nor that the court gave one on murder in the first degree.
    5. —-: Circumstantial Evidence. It is the statutory duty of the court to instruct on circumstantial evidence, where the inference of guilt is to be inferred from facts and circumstances, for then such an instruction is necessary for the information) of the jury in reaching their verdict.
    6. DEFENDANT AS WITNESS: Cross-Examination. The attorney for the State, in the cross-examination of defendant, has the right to go into questions covered by his direct examination.
    7. ARGUMENT TO JURY: Preservation for Review. To attach to the motion for a new trial excerpts from the argument to the jury made by tbe attorney for tbe State, no part of which, is incorporated in tbe bill of exceptions, is not sufficient to preserve them for review on appeal. Nor is there any basis to complain of such argument on appeal if no exceptions to them were saved in the trial court.
    8. WITHDRAWAL OF JURY: No Exception. A complaint on appeal cannot be based on the refusal of the trial court to withdraw thfe jury pending a decision upon the competency of certain testimony, if there was no ruling on the request and no exception was saved by appellant.
    9. INSTRUCTION: Refusal: Covered by Others. It is not error to refuse an instruction requested by defendant where it is but a repetition of others given and the matters it embraces are fully covered by such others.
    10.MOTION FOR NEW TRIAL: General Assignments. An examination of the entire transcript disclosing no error actually committed by the trial court, the judgment adjudging defendant guilty of murder in the second degree is affirmed; but JJAVID E. BLAIR, J., and HIGBEE, P. J., do not concur with that part of the opinion announcing that a general assignment in the motion for a new trial that the verdict was the result of passion and prejudice on the part of the jury and that error was committed in the admission and exclusion of testimony is insufficient, but express themselves as not satisfied with rulings heretofore announced attempting to distinguish between such assignments in criminal and civil cases.
    Appeal from St. Louis City Circuit Court. — Now. Benj. J. Klene, Judge.
    Affirmed.

      Jesse W. Barrett, Attorney-General, and Robert W. Otto, Assistant Attorney-General, for respondent.
    (1) Mere allegations of passion and prejudice present nothing for review. State v. McBrien, 265 Mo. 594, 604. (2) The court did not commit error in overruling appellant’s instruction in the nature of a demurrer requested by appellant at the close of the State’s testimony-in-chief. The record discloses that there is substantial evidence upon which to submit the case to the jury. State v. DePriest, 232 S. W. 83; State v. Fields, 234 Mo. 615, 627; State v. James, 216 Mo. 394, 407; State v. Wooley, 215 Mo. 620, 687; State v. Belknap, 221 S. W. 39. Defendant waived Ms right to insist upon his demurrer at the close of the State’s case by introducing his own evidence. State v. Belknap, 221 S. W. 45; State v. Mann, 217 S. W. 69; State v. Martin, 230 Mo. 680, 700; State v. Lackey, 230 Mo. 707, 713; State v. Fuller, 213 S. W. 98. (3) Appellant alleges that the. court erred in admitting illegal, improper, incompetent and prejudicial evidence, introduced on the part of the State over the timely objections and exceptions of the defendant. The foregoing objection to the evidence is not before the court for review. The particular testimony complained of should he indicated in the motion for new trial. State v. Holden, 203 Mo. 581; State v. Brown, 168 Mo. 449, 474; State v. Whitsett, 232 Mo. 511, 529. (4) The cross-examination of the witness was not improper, illegal or prejudicial, nor was the assistant circuit attorney guilty of misconduct, nor did the court err in permitting him to ask the witness prejudicial questions, (a) A witness for the defendant who testifies to the latter’s good character may, on cross-examination, he interrogated as to his sources of information and his knowledge. of the character of the accused, although other and independent crimes charged against the defendant may thereby be disclosed". State v. Crow, 107 Mo. 342.; State v. Boyd, 178 Mo. 2, 17. (b) The rulings of the trial court as to the admission of evidence are not before this court for review. A mere objection to the testimony, without stating any grounds therefor, will not require an examination into the admissibility of the evidence. State v. Westlake, 159 Mo. 669, 679; State v. Decker, 217 Mo. 315, 325; State v. Bell, 212 Mo. Ill; State v. Harris, 199 Mo. 716, 723. (5) Cross-examination of the defendant was proper. A careful examination of the evidence brought out on cross-examination of the defendant does not disclose that he was asked questions which referred to the character and criminal records of the other defendants in tlie indictment. Cross-examination need not be confined to a mere categorical review of the matters stated in direct examination. State v. Meyers, 221 Mo. 613; State v. Foley, 247 Mo. 638; State v. Miller, 190 Mo. 463; State v. Miller, 156 Mo. 85. (6) Defendant was convicted of mnrder in the second degree, be cannot complain of a given instruction on mnrder in the first degree. State v. Lewis, 264 Mo. 420, 430; State v. Sharp, 233 Mo. 269, 288;' State v. Green, 229 Mo. 642, 654; State v. Wilson, 250 Mo. 323, 329. (7) The court did not err in giving an instruction on murder in the second degree. There was sufficient evidence to sustain a verdict of guiltv of murder in the second degree. State v. More-head, 271 Mo. 84, 88; State v. Fuller, 213 S. W. 98; State v. Fields, 234 Mo. 615, 624; State v. Howard, 231 S. W. 255. (8) Where the law, as declared by a requested instruction, is fully covered by other instructions given by the court, a requested instruction is properly refused. State v. Rose, 271 Mo. 17, 28; State v. u-rant, 152 Mo. 57, 71; State v. Bowman, 213 S. W. 64, 65; State v. Shellman, 192 S. W. 435; State v. Gilbert, 186 S. W. 1003. (9) The court did not err in failing to instruct on all the law in the case. This point is not before" the court for review. The record fails to show that appellant offered or requested any instruction, and fails to show that appellant excepted at the time, to the failure of the trial court to instruct on all of the law applicable to the case. State v. Pfeifer, 267 Mo. 23, 29; State v. Goldsby, 215 Mo. 48, 57; State v. George, 214 Mo. 262, 270; State v. Gaultney, 242 Mo. 388. (10) The court did not err in instructing on circumstantial evidence. Where a conviction is sought on circumstantial evidence alone, an instruction on circumstantial evidence becomes necessary. State v. Bobbitt, 215 Mo. 10, 43; State v. Donnelly, 130 Mo. 642. (11) The court did not err in failing to withdraw the jury for the purpose of the court passing on the admissibility of evidence, (a) The statements of a defendant when arrested on a charge of committing a crime are always admissible against him. State v. Dale, 210 Mo. 664, 676; State v. Wilkins, 221 Mo. 444, 448; State v. Prunty, 276 Mo. 359, 376. (b) It is not reversible error not to send the jury out during the preliminary hearing as to- the admissibility of evidence. State v. Stebbins, 188 Mo. 387, 399. (c) This point is not before this court for review. There was no objection made or exception saved to the refusal of 'he court to withdraw the jury. State v. Stebbins, 188 Mo. 387, 399. (12) The alleged improper remarks of the assistant circuit attorney are not set forth in the bill of exceptions. Therefore the question as to whether or not such remarks were proper will not be reviewed by this court. State v. Arnold, 267 Mo. 33, 41; State v. Brooks, 202 Mo. 106, 118; State v. McAfee, 148 Mo. 370, 380. (a) Alleged improper remarks cannot be shown by affidavit. State v. McCarver, 194 Mo. 717, 740; State v. Welsor, 117 Mo. 57(3, 583; State v. Lamb, 141 Mo. 298, 305. (b) It is not sufficient to set forth the remarks of counsel in his argument to the jury in the motion for new trial. State v. Bulling, 105 Mo. 204, 226; State v. McDaniel, 94 Mo. 301, 306. _
   BEEVES, C.

Appellant was one of four defendants charged with murder in the first degree for the killing of Henry Krallman at the City of St. Louis on the night of the 25th day of July, 1919. The information was of approved form and its sufficiency was never questioned.

Appellant had a severance, and upon his- trial the jury returned a verdict of guilt for murder in the second degree only, and fixed his punishment at imprisonment in the penitentiary for a term of twenty-five years. His motion for a new trial, having been overruled, he .perfected his appeal to this court, but has filed no brief and has made no assignments of error. Under the circumstances and in the absence of a motion in a'rrest of judgment, we look alone to the motion for a new trial to determine whether error sufficient to warrant reversal occurred upon the trial. [State v. Maggard, 250 Mo. 335; Sec. 4106, R. S. 1919.]

Of tire twenty-three assignments of error in the motion for a new trial, several were mere repetitions and all may be condensed into the following:

(a) Insufficient testimony to warrant conviction; (b) Passion and prejudice of the jury; (e) Error in instructing the jury on murder in first and second degree, and instructing on circumstantial' evidence; (d) Error in the admission of testimony; (e) Misconduct of the State’s Attorney in his cross-examination of the defendant’s witnesses and in his closing argument; (f) Failure to withdraw the jury while the question of the admissibility of certain questions was being considered by the court; (g) Error in refusing to give appellant’s requested instruction No. 2.

About 11:30 p. m. on July 25th, 1919, Henry Krall-man, the deceased, was shot and killed in his saloon on the southeast corner of Marcus and McOaffery streets in the City of St. Louis. McOaffery Street runs east* and west and Marcus Street runs north and south, Ash-land Street being one block north of and parallel to McOaffery, and Cora Avenue being one block east of and parallel to Marcus.

At the time of the tragedy deceased was apparently aloiie in his saloon, which faced east on Marcus Street. He lived with his family upstairs over his saloon and grocery store, the latter- facing north on McOaffery.

Lillian Krallman, a daughter of deceased, was upstairs, ready to retire, when she heard two shots down in the saloon; she went to the north window of the room, looked out and saw two men, one coatless, running north up the terrace and across the lawn of a cottage on the north side of McOaffery Street. She then went down to the saloon wdiere she found deceased lying on the floor dead with a bullet wound in the head. There was no controversy about the killing. Other witnesses saw two men run north immediately after the two shots, the one being a short- coatless man following a taller man wearing a dark snit.

A few minutes prior to the tragedy an automobile without lights stopped, facing east on Ashland and on the south side thereof, and only a few feet east of Marcus. This was a short block north of the saloon. Two men got out of the car, one short and coatless and the other tall, wearing a dark suit. The driver of the car said he would drive around and meet them at the same place, to which one of the two replied, “You be sure and be here. ’ ’ The car then drove east on Ashland, turning and disappearing to the north on Cora, returning in a few minutes to the same place. In the interim the two men walked south on-Marcus, soon two shots were heard, and then the same two men came running hack to the waiting automobile, the taller man somewhat in front, and as they jumped on the car the shorter man was heard to say, “I killed him.” The car then proceeded rapidly east with lights on and disappeared. Shortly thereafter defendant and John O’Donnell, Walter G-. Ballman and Timothy McCarthy appeared together in one or more saloons where they drank together and ate sandwiches. When arrested, appellant admitted that he was in Krallman’s saloon with John O’Donnell when Krallman was killed, but refused to say who did the killing and futher admitted that he was with McCarthy, Ballman and O’Donnell in the automobile that stopped on the corner of Ashland and Marcus one block north of the place of the tragedy.

Appellant testifying in his own behalf said he met McCarthy, Ballman and O’Donnell a few days prior to the tragedy; that on the fatal night they started out in Ballman’s car about 6:30 p. m. to find a bondsman for one of McCarthy’s employees, then in jail; that when they got to Ashland one block north of the saloon of the deceased, O’Donnell called to the driver to stop, as he thought he knew a fellow “back here” to sign the bond; that the machine stopped and O’Donnell got out, started down the street, but when twenty feet away called appellant to go with him. Appellant was intoxicated, but got out and followed 0 ’Donnell, walking a few feet back of him. When they got down to McCaffery Street appellant “stumbled on a rock” and then O’Donnell got further ahead of him. When appellant got to the. saloon door and before he could get in, the shots were fired and O’Donnell came toward appellant pointing his gun at him and ordering him to get back to the machine, which he did, pursued by 0 ’Donnell with the gun on him. After 'the killing, appellant and O’Donnell with Ballman were drinking together in Haberman’s saloon, McCarthy remaining in the automobile on the outside. Other facts will be given in the course of the opinion.

I. The first question for determination is the one regarding the sufficiency of the testimony. Appellant demurred at the close of the State’s case but, being overruled, he proceeded to introduce testimony bn bis own behalf. He cannot now properly challenge the ruling of the court in refusing to sustain his demurrer. [State v. Martin, 230 Mo. 680; State v. Belknap, 221 S. W. 39; State v. Mann, 217 S. W. 67; State v. Lackey, 230 Mo. 707; State v. Fuller, 213 S. W. 98.]

However, as the motion for a new trial challenges the sufficiency of the evidence upon the whole record, that question is presented for our consideration.

That a most atrocious and unprovoked murder was committed stands uncontradicted on this record. On the night of the tragedy appellant, with three companions, namely, Timothy McCarthy, Walter G. Ballman and John 0 ’Donnell,. were admittedly together from 6:30 in the evening until one o ’clock of the next morning, using Ballman’s automobile. During that time their whereabouts was not wholly accounted for, but it did appear that they at one saloon and probably two sought a bond for one of McCarthy’s employees, who was confined in jail. About 11:20' p. m. the automobile, containing thq appellant and bis companions, without lights,, appeared at the corner of Ashland and Marcus streets, one short block north of the place where deceased operated his saloon. The automobile stopped on Ashland near the southeast corner of Ashland and Marcus. The defendant, with one John O’Donnell, got out of the automobile on said southeast corner of Marcus and Ashland, whereupon the driver of the car said he would drive around and meet them there at the same place, to which either appellant or O’Donnell said, “You be sure and be here.” Appellant and O’Donnell then walked directly south on Marcus Avenue toward the place of business of deceased. When arrested defendant admitted that he and 0 ’Donnell were together in the saloon of deceased at the time of the killing, but he refused to say who did the shooting. At the trial he admitted all of the above facts except that he was in the saloon. He said that O’Donnell called to him after the automobile had stopped on Ashland and invited him to accompany O’Donnell down to the saloon; that being then intoxicated appellant thought he would go along to get a drink of lemon and selzer; that O’Donnell walked a few feet ahead of the appellant until they reached McCaffery Street, where appellant stumbled over a rock, and then 0 ’Donnell increased his lead; that when appellant got to the open door of the saloon he heard the two shots and was immediately confronted with 0 ’Donnell with drawn revolver, menacing appellant and ordering him back to the machine, and being frightened he ran back to the machine with O’Donnell pursuing him with his gun. Within ten minutes after appellant and O’Donnell left the car on Ashland, they came running back. Immediately after the shot, 0 ’Donnell and appellant were seen running north across McOaffery, up the terrace and across the lawn of a cottage on the north side of McCaffery and east of Marcus. The automobile with Ballman and McCarthy in it was waiting at the agreed place, and as appellant and 0 ’Donnell sprang into the car after the shooting, one of them was heard to say, “I killed him.” The automobile then sped east on Ashland and disappeared. Shortly thereafter appellant, with O’Donnell and Ballman, appeared in a saloon where they ate and drank together. These were the undisputed facts in the case, and the truth thereof was practically admitted by appellant, although he said at the trial that he was not in the saloon and intimated that 0 ’Donnell did the shooting and then compelled him to flee at the point of a pistol. Yet the jury had a right to disregard this part of appellant’s testimony and had a right to consider, which it probably did, only the fact of the murder, the circumstances under which appellant and his companions approached the place of the tragedy, the admission as to what occured in the saloon, and the circumstances under which they fled away, and these circumstances were ample from which inference might be drawn that appellant and his companions went there with the common design of taking the life of the deceased.

It was not only proper for the court to submit the case to the jury, but its verdict was not against the weight of the evidence. [State v. De Priest, 290 Mo. 177, 232 S. W. 83.]

Even though O’Donnell, appellant’s companion, may have done the actual shooting, yet the jury had the right, upon the testimony, to infer that he acted in pursuance of a common purpose or conspiracy. “The law does not require direct and positive evidence of such conspiracy. It is sufficient if it may be inferred from the facts and circumstances in evidence.” [State v. Fields, 234 Mo. 615, l. c. 623; State v. Roberts, 201 Mo. 702; State v. Darling, 199 Mo. 168; State v. Sykes, 191 Mo. 62.]

II. Appellant’s assignment that the verdict is the result of passion and prejudice of the jury is not supported by any reason for the allegation, and a careful reading of the entire transcript of the record fails to disclose any misconduct on the part of the jury or any act from which an inference might he drawn that the jury was moved hy passion and prejudice, and such an allegation in the moton for a new trial presents nothing for review. [State v. McBrien, 265 Mo. 594; Sec. 4079, R. S. 1919.]

III. There was no error prejudicial to appellant in instructing the jury on murder in the first and second degree and on circumstantial evidence, as claimed hy him in his motion for a new trial. As was well said in the case of State v. Fields, 234 Mo. 615:

‘There was clearly evidence tending to prove murder in the first degree, and we need not stop to inquire whether it also tended to prove murder in the second degree, for it is provided hy Section 4903, Revised Statutes 1909, now Section 3692, Revised Statutes 1919, that ‘any person found guilty of murder in the second degree, . . . shall he punished according to the verdict of the- jury; although the evidence in the case shows him to be guilty of a higher degree of homicide.’ ”

Appellant therefore was the beneficiary of this instruction, and if error, it was in his behalf and he cannot complain of such instruction here, as the testimony tends to show murder in the first degree. Again Section 3908, Revised Statutes 1919, specifically provides that a judgment of conviction shall not he affected “because the evidence shows or tends to show him to be guilty of a'higher degree of the offense than that of which he is convicted.’’

It was the statutory duty of. the court to instruct on circumstantial evidence, as that became a question of law arising in the case and was necessary for the information of the jury in giving their verdict, [Sec. 4025, R. S. 1919.]

TV. Although appellant did not specify in his motion for a new trial, as he should have done, the testimony admitted over his objections, we have carefully parched the record and we find no testimony produced to the jury over his objections that should have been excluded. . In view of the fact that appellant did not except to the court’s adverse ruling, save in a few instances, the greater part of such matter is not before this court for review. [State v. Snyder, 173 S. W. 1078, 263 Mo. 664; State v. Fields, 170 S. W. 1132, 262 Mo. 158.]

Again where appellant saved his exceptions to the adverse rulings of the court on the admission of testimony, he should.have pointed out in his motion for a new trial the particular testimony about which he complained, as otherwise the motion is entirely too indefinite. [State v. Holden, 203 Mo. 581.]

Y. Much of the' motion for a new trial consists of complaint against the conduct of the Assistant Circuit Attorney in the ’ manner of his cross-examination of appellant and his witness. Appellant has specified more definitely in these assignments the nature and character of such cross-examination, hut by reference to .the objectionable matter in the record we find the Assistant Circuit Attorney only went into questions covered by the direct examination. This he had a right to do, and the assignment is without merit. [State v. Miller, 156 Mo. 76, 56 S. W. 907.]

VI. Appellant attached to his motion for a new trial excerpts from an alleged argument made by the Assistant Circuit Attorney to the jury at the close of the case, which argument he complains against as misconduct. We have examined the bill of exceptions and we find no pait of such argument. The only record of such argument is contained in the statement attached to the motion for a new trial. It is presumed, therefore, that there was no misconduct. [State v. Lloyd, 217 S. W. 26, l. c. 27; State v. Schrum, 164 S. W. 202, 255 Mo. 273; Miller v. Engle, 185 Mo. App. 558, l. c. 579 and 580; Dougherty v. Whitehead, 31 Mo. 255.]

Again, even if prejudicial and improper argument had been made to the jury, the excerpt from such argument as attached to the motion for a new trial did not show that a single exception was saved to. the ruling of the court. It appears that the court sustained the objections made by appellant’s counsel and rebuked the & ssistant Circuit Attorney, except in one case where the court merely said that it was a matter of argument and directed the Assistant Circuit Attorney to proceed. No exceptions were saved and no requests were'made to reprimand counsel and discharge the jury, and in consequence there is no basis for complaint here.

VII. Complaint is made against the action of the court in refusing to withdraw the jury pending decision by the trial court as to the competency of certain testimony. The record shows that such request was made of the court during the examination of Detective Sergeant John P. Roach. No ruling was made by the court and no exceptions saved by appellant, so this question is not before us for review. [State v. Snyder, 173 S. W. 1078, 263 Mo. 664.]

VIII. Appellant further complains that the court erred in refusing to give his Instruction Number Two. This requested instruction was but a repetion of Instruction Number Six and other instructions given by the court, and as the same matter was fully covered by other instructions, it was not error for the court to refuse to give this one.

We have carefully examined the entire record in this case touching all questions raised by appellant’s motion for a new trial and it 'is our judgment that appellant was fairly tried upon questions correctly sub: mitted to the jury. No reason appears to disturb the judgment of the lower court, and it is accordingly affirmed.

Bailey and White, CC., concur.

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

All of the judges concur; D. E. Blair, J., in separate opinion, in which Higbee, P. J., concurs.

DAVID E. BLAIR, J.

(concurring). — -I concur in the result reached in this case by the learned Commissioner and in everything said in the opinion, except what is therein said in reference to the insufficiency of the general assignments of error in the motion for new trial attacking the verdict as the result of passion and prejudice, and attacking the rulings of the trial court on the admission and exclusion of testimony.

I am not satisfied with the rulings heretofore made by this Division distinguishing between such assignments in civil and criminal cases and' believe that in a proper .case a final decision on the question by Court in Banc is desirable. But since the Commissioner has examined the transcript and found that no error was actually committed by the trial court in regard to the matters attacked in such general'assignments, with which ruling I am in agreement, I concur in the result reached by him.

Higbee, P. J., concurs in these views.


source: Caselaw Access Project

author: HIGBEE, P. J.

license: Public Domain

text:
    THE STATE v. ELMER CANTRELL, Appellant.
    Division Two,
    November 19, 1921.
    1. INSTRUCTION: Converse of State’s: Inference. The converse of the State’s instruction, if asked by the defendant, should be given. It may be that a jury will infer the converse of a correct instruction given for the' State, but defendant’s case should not be submitted on an inference.
    2. -:-: Robbery: Conspiracy. The information charged that Cantrell, Coleman and Duboise had robbed Presley of a gold watch and forty dollars in money. Cantrell was granted a severance, and one instruction for the State told the jury to find him guilty of robbery in the first degree if they found that Duboise and Coleman feloniously took the property from Presley's person, against his will, by force and violence to his person, etc., “if you shall further find and believe from the evidence that the defendant Cantrell was then and there wilfully present, aiding and abetting and encouraging them so to do or either of them.” The court refused to give defendant’s instruction telling the jury that “the mere presence of the defendant at the time Presley was robbed, if you believe and find he was robbed-, but did not aid, abet, assist or encourage Coleman and Duboise, then you will acquit him.” Held, that the instruction requested by defendant w.as the converse of that given for the State, and should have been given; for, although the jury might have inferred from the instruction given for the State that defendant, though present, did not aid, abet or encourage the others to commit the robbery and was therefore to be acquitted, his side of the case should have been fairly submitted to them and should not have been made to depend upon an unexpressed inference to be drawn, from the State’s instruction.
    3. -: -: -: Grand Larceny. Where there was testimony that the prosecuting witness said to defendant, in the presence of another, “I know you didn’t rob me, and I don’t know who did; if you will give me fifty dollars I will run away and they will never get me,” the court should have given an instruction on grand larceny, for if the. testimony was true the jury might have found defendant guilty of having surreptitiously stolen the watch and money from the prosecuting witness’s person without the use of force or violence or putting him in fear of injury to his person.
    4. ROBBERY: Larceny. It is not robbery to obtain property from another without violence, by trickery and artifice or by the use of only sufficient force to remove it from his pocket, but only larceny.
    Appeal from Jefferson Circuit Court. — Hon. E. M. Hearing, Judge.
    Reversed astd remawded.

      Jos. Q. Williams and J. A. Rollins for appellant.
    (1) Tlie court erred in giving instruction 1, for the reason that the testimony did not warrant the giving of said instruction. The testimony failed to show that the defendant used any force whatever in taking the money, watch or knife out of the pockets of Pressly, neither did he threaten him or put him in fear of any immediate danger whatever. In fact, the testimony on the part of the State showed, if true, that the defendant simply put his hands into the pocket of Pressly and took his money out of his pockets, with some papers, and handed him back the papers. Pressly, himself, stated, “I did not understand what was going on and did not know what was going on.” If the State’s testimony is true, the defendant was guilty of grand larceny, and the court should have so instructed the jury. State v. Moxey, 102 Mo. 374; State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149; State v. Mahly, 68 Mo. 315. (2) The court erred in giving instruction 2, because there is no evidence of any kind or character, nor are there any other facts to sustain the assumption that Duboise and Colman were acting in conjunction with the defendant, and no evidence that there was a common purpose, a common design, or a common intention on the part of the defendant and Colman and Duboise to rob Pressly. State v. .Darling, 216 Mo. 464; State v. Meyers, 174 Mo. 359; State v. Hickam, 95 Mo. 332.

      Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
    (1) The information is sufficient. It charges the offense of robbery in the first degree in the language of the statute. Sec. 3307, R. S. 1919; Sec. 3908, R. S. 1919; State v. Calvert, 209 Mo. 280, 284, 287; State v. Wil-coxen, 38 Mo. 370, 371. (a) It is no objection to the indictment that it does not in express terms charge an assault. The language employed necessarily involves the charge that an assault was committed. State v. Brewer, 53 Iowa, 735; State v. Brill, 21 Ida. 269; ■State v. Swafford, 71 Tenn. 162.; State v. Switzer, 38 Nev. 108; Lampldn v. State, 87 Ga. 516, 522. (b) The use of tbe.term “feloniously,” in the information filed in this case, applies to every essential element of the offense charged, its force reaching onward and qualifying all. Sec. 3307, R. S. 1919; 3 Bishop’s New Crim. Pro., sec. 1003; State v. Brown, 104 Mo. 365, 370; State v. Davidson, 38 Mo. 3-74, 378. (c) The information is not fatally defective because it charges robbery, both by putting Pressly in fear of some immediate injury to his person and by violence to his person. State v. Eddy, 199 S. W. 186; State v. Flynn, 258 Mo. 211, 224; State v. Montgomery, 109 Mo. 645; State v. Calvert, 209 Mo. 280, 286. (2) The instructions given seem fairly to cover the issue joined. State v. Cantlin, 118 Mo. 100, 107; State v. Dockery, 243 Mo. 592, 596; State v. Calvert, 209 Mo. 280,287. (3) The court did not commit error in giving instruction 2. While the instruction contained the words, “or by putting him in fear,” the same not being a sufficient definition of robbery under that clause of the statute, these words so contained in said instruction were mere surplusage and non-prejudicial as the evidence in this case establishes a robbery by violence to the person and ggainst his will. This was all that was necessary. If force be used, fear is not an essential ingredient of the crime of robbery. State v. Broderick, 59 Mo. 318; State v. Lawler, 130 Mo. 366; State v. Lamb, 141 Mo. 298; State v. Crowell, 149 Mo. 391; State v. Kennedy, 154 Mo. 268; State v. Calvert, 209 Mo. 280.
   HIGBEE, P. J.

The appellant, Elmer Cantrell, and two negroes Cecil Duboise and Archie Coleman, were jointly charged with robbery, in that they feloniously stole, took and carried away from the person of C. A. Pressly, against his will, by violence to his person, and by putting him in fear of some immediate injury to his person, one gold watch of the value of twenty dollars and forty dollars in lawful money, the property of said C. A. Pressly. A severance was granted, a trial was had, defendant was found guilty as charged and his punishment fixed at imprisonment in the penitentiary .for a term of five years, from which conviction the defendant appealed.

The evidence for the State tended to prove that Pressly, who lived at Bismarck, went to DeSoto, where he met Cantrell, Coleman and Duboise. .After freely imbibing at all the saloons in the city, they went, in the evening, over a bridge in the outskirts of the city, where it was quite dark. There they each took one or more drinks out of Pressly’s bottle of whisky. If there-be any truth in the adage “in vino veritas,” their testimony should be unimpeachable. While the drinking was going on, Cantrell suddenly cried out, “Look at that fellow.” (meaning Pressly). “He has got a gun. He will shoot you. Let me have your knife,” or words to that effect. At the same time Cantrell caught Pressly, put his left arm around his neck, while with his right hand he took from Pressly.’s pockets his watch, knife and about forty dollars in money. Pressly released himself, ran into town with appellant close upon his heels, and reported the robbery, the three were arrested that night, Coleman being found at his house. Coleman’s sister gave the officer Pressly’s watch. The money was not recovered. Coleman and Duboise testified for the State, corroborating Pressly’s evidence, but denying any complicity in the affair. The defendant, Cantrell, testified in substance that Duboise drew a gun on Pressly, ordered him to throw up his hands and then grabbed him; that he, Cantrell, started away and walked across the bridge.

I. The information follows the language of the statute, Section 3307, Revised Statutes, 1919, defining robbery in the'first degree, and is sufficient. There is po merit in the objection to the first instruction given for the State.

II. The second instruction authorized the jury to find the defendant guilty of robbery in the first degree if they found from the evidence that Duboise or Coleman feloniously took the property of Pressly mentioned in evidence, from his person, against his will, by force and violence to his person, or by putting him in fear and with no honest claim to said property and with the intent to deprive Pressly of his ownership therein, and to convert the same to his or their use, “and if you shall further believe and find from the evidence that the defendant Cantrell was then and there wilfully present, aiding and abetting and encouraging them so to do or either of- them.” The court refused the defendant’s instruction numbered 7 in the following language: ‘ ‘ The court instructs the jury that the mere presence of the defendant at the time that C. A. Pressly was robbed, if you believe and find that he was robbed, but did not aid, abet, assist or encourage the defendants, Coleman- and Duboise, then you will acquit him.” It is claimed by the State that this is .covered by the second instruction. This is the converse of the State’s instruction and should have been given. [State v. Rutherford, 152 Mo. 124, 134; 1 Blashfield’s Instructions (2 Ed.) sec. 143, p. 331.]

It may be that the jury would infer the converse of the State’s instruction, but not all jurors are skilled in dialectics. The defendant’s case should not have been submitted to the jury on an inference. “The court must instruct the jury upon all questions of law arising in the case which are necessary for their; information in giving their verdict . . . and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.” [R. S. 1919, sec. 4025, par. 4.] “On principle, whenever the court in a criminal case undertakes to instruct on a question of law for the guidance of the jury ‘in giving their verdict, ’ the instruction should guide them fairly, should present both sides of a proposition, if it has two sides, and this is so whether the attention of the court is drawn to tlie matter by a request from either the State or the defendant, or whether the court proceeds upon the matter of its own motion.” [State v. Harris, 232 Mo. 317, 321; State v. Palmer, 88 Mo. 568.]

III. There was testimony on behalf of the appellant that after the robbery, Pressly, in the presence of Tom Haverstick, said to Cantrell, “I know you didn’t rob me, and I don’t know who did; if you will give me fifty dollars I will run away and they will never get me." Pressly denied making this statement. If, however, the jury believed that Pressly made this statement, it is obvious they might have found Cantrell guilty of grand larceny by having surreptitiously 'stolen Pressly’s watch and money from his person without the use of force or violence or putting him in fear of injury to his person. Such an act is merely larceny and not robbery. [State v. Sommers, 12 Mo. App. 374, 375; State v. Parker, 262 Mo. 169, 178-180; State v. Spivey, 204 S. W. 259.] It is not robbery to obtain property from another without violence, by artifice and trickery or by use of only sufficient force to remove the property from his pocket. [34 Cyc. 1800, note 25.] Therefore the court should have given the jury an instruction on grand larceny. The judgment is reversed and the cause remanded.

All of the judges concur.


author: WALKER, J.

text:
    THE STATE v. J. WESLEY HENSON, Appellant.
    Division Two,
    November 19, 1921.
    1. ARSON: Ownership of Public Building: Indictment and Proof. The statute does not require an allegation of ownership where the building burned is a public one, and particularly where it is alleged that it was being used for a public use. An allegation in the information that the building burned by defendant was the property of a certain public school district, except to explicitly define its location in the county named, is surplusage, and proof to sustain it is not necessary.
    2. CONTINUANCE: Presumption. In the absence of a showing to the contrary, the presumption obtains that the trial court, in denying defendant’s application for a continuance, properly exercised its statutory discretion; and where the transcript shows only a record entry of an application and 'the overruling of the same, the assignment that the court erred in refusing to grant a continuance is not for consideration.
    3. KEPEESHINGr WITNESS’S MEMORY: Withdrawal and Private Interview. The practice of permitting the prosecuting attorney to withdraw a witness, who had testified before the grand jury and manifested a hazy memory when examined at the trial, in order that he might refresh her memory as to her former testimony, is not to be commended; but where the only complaint is as to the manner pursued, and there is nothing to show that the defendant was, thereby in any wise deprived of a fair trial, the irregular procedure will not be held to be prejudicial error.
    4. SURPRISE: At Own Witnesses Testimony. A surprise at the damaging testimony of defendant’s own witness will not authorize a new trial except upon a showing that the defendant could not have known what the testimony would be, and it is incumbent upon defendant to show that he did not have opportunity to obtain such knowledge.
    5. -: -: Brought put by Defendant: Objection: Continuance. Defendant is precluded from urging on appeal that he was entitled to a continuance or a new trial because of his surprise at the damaging testimony of his own witness, if such testimony was brought out by his direct examination of the witness, and on cross-examination by the State no objection was interposed. Objection must be made and continuance asked at the time; the objection cannot be made for the first time in the motion for a new trial. The rule as to surprise is the same in criminal as in civil cases.
    6. DEMURRER TO EVIDENCE: Substantial Testimony: Arson. Where the indictment sufficiently charges the offense and there is substantial testimony to sustain it, a demurrer to the evidence should be overruled. Proof that a schoolhouse was burned, that defendant had threatened to burn it, that he was at the schoolhouse only a half hour before it was seen to be burning, that he returned home three or four miles distant shortly afterwards and told his daughter-in-law that he had burned it and that he would kill her if she ever told that he had burned it or ever threatened to burn it, is sufficient to support a verdict of guilty.

      Appeal from Stoddard Circuit Court. — Root W. S. G. Walker, Judge.
    AFFIRMED.

      K. C. Spence and W. W. Cooper for appellant.

      Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
    (1) The indictment is sufficient. Sec. 3286, R. S. 1919; State v. Hunt, 190 Mo. 353; State v. Moore, 61 Mo. 276. (2) The verdict is supported by substantial evidence, and this court will not interfere. State v. Cannon, 232 Mo. 205, 215; State v. Sharp, 233 Mo. 269, 298; State v. Fields, 234 Mo. 615, 627; State v. Bidstrup, 237 Mo. 273, 283. The State’s instruction referred to as number 3 correctly declares the law on the question of credibility and weight of testimony and was properly given. Kelly’s Criminal Law and Practice, sec. 396; State v. Shelton, 223 Mo. 118, 138. (3) Matters of continuance rest largely in the discretion of the*court. The appellant complains in his motion for a new trial that the court-erred in refusing continuance on account of the absence of a witness due to sickness. The application is not set out in the record and it does not appear that any objections were raised as to the sufficiency of the same. The presumption is that the court properly exercised his discretion therein and this court will not interfere unless it appears that such discretion has been unwisely exercised. State v. Williams, 170 Mo. 204, 207; State v. Craft, 164 Mo. 631, 649. (4) The surprise complained of by appellant in his motion for a new trial is found in the testimony of his own witness and was called forth by his own questioning; hence he is bound thereby, and the court properly overruled this objection. Howell v. Howell, 37 Mo. 124; Shaw v. Besch, 58 Mo. 107; Paper Company v. Luney, 68 Mo. 1, 7. (5) It is complained by appellant that the evidence fails to show that the Cross or Buck Rub school house is the same property alleged in the indictment to be the property of School "District Number Eighteen. It is not necessary to allege ownership in this case and such allegation may be treated as surplusage and hence not necessary to offer proof of such ownership. State v. Moore, 61 Mo. 276, 281; State v. Hunt, 190 Mo. 353, 358.
   WALKER, J.

Appellant was indicted under Section 3286, Revised Statutes 1919, in the Circuit Court of Stoddard County, for arson in the third degree. Upon a trial, he was convicted and his punishment assessed'at three years’ imprisonment in the penitentiary. From that judgment he appeals.

The specific charge leveled against the appellant was the burning of a schoolhouse located in his neighborhood, which, was designated as the Cross or Buck Rub schoolhouse. Other than for educational purposes, the building had been used occasionally for church services by a number of persons called the Pentecostal sect. The building was burned just after dark on the-day of February, 1919. That evening, after the close of school and the teacher and other pupils had gone home, a fourteen-year-old-boy remained to attend to the janitor work. While he was thus engaged, the appellant appeared, and upon entering the room asked the boy if there was any fire in the stove, that he was cold. The boy answered him in the affirmative and appellant sat down near the stove and remained there until the boy had finished his work. When this was done, both went out together. The boy closed the door, but did not lock it, and started towards his home. The appellant went in a different direction towards where he resided. About a half hour later, persons in the neighborhood, among others the boy, saw the fire from their respective places of abode. Upon investigation, it was found to be the schoolhouse. The building was destroyed before any effective effort could be made to extinguish the fire.

Appellant was opposed to the use of the building’ by the Pentecostal sect. Upon leaving* his home the morning of the day the building was burned, appellant remarked to his daughter-in-law, who resided with her husband at appellant’s house, that he (appellant) was going to make his words good; that he was going to do what he had said; that the schoolhouse should not stand; that the Pentecostal sect was preaching in it.

Appellant, after making these remarks, left the house and did not return until a short time after dark. The witness and her husband saw the fire which was about three and a half miles distant. They did not at the time know it was the schoolhouse. While they were watching it, appellant appeared, but from what direction was not noted. When he came up, he said: “Do you know that Buck Rub schoolhouse is burning; I have made my words true, and have done what I said I was going to do; and that if you [witness or her husband] tell of my burning the schoolhouse, I will kill you.”

There was testimony for the appellant that four years before the date of this offense he was treated for epilepsy and succeeding the attack was mentally irresponsible, raved, and had to be held in bed; that about a'year or more before the offense, he had a similar attack; that except when so afflicted, he attended to his usual business affairs -and had done so during the time immediately preceding the burning of the schoolhouse. The defense was an alibi. Appellant denied the commission of the crime, and said that he was up in his field about a hundred yards from his own house when he discovered the fire. This was all the testimony.

The court instructed the jury as follows: First, in a general instruction which defined the offense as charged, hypothesized the facts necessary to be found to authorize a conviction,, and stated the punishment; second', the usual instruction in regard to a presumption of innocence; third, as to the credibility of witnesses; fourth, the quantum of proof necessary to sustain a conviction on circumstantial evidence; fifth, the manner in which the defense of an alibi is to he considered; and, sixth, what constitutes a reasonable doubt.

Appellant asked no instruction, except one in the nature of a demurrer to the evidence at the close of the testimony for the State, and a like instruction at the close of all the testimony.

I. The charging'part of the indictment alleges that “at the said County of Stoddard, on the — day of February, 1919, one J. Wesley Henson, did then and there unlawfully, willfully and feloniously, set fire . . . . . ... . .. ,. to and ourn a certain public schoolliouse there situate, of the property of School District Number Eighteen, in Stoddard County, Missouri, and erected for use as a public school building, against the peace and dignity of the State.”

It is contended that there was no proof to show that the building was the property of the district designated in the indictment.

It may be asserted as a general rule of criminal pleading, applicable to charges brought under the statute here invoked, that an allegation of ownership is not necessary when it is alleged that the structure burned is a public building. The averment, therefore, that it was the property of a particular school district, except to’ explicitly define its location in the county named, was surplusage, and proof to sustain it was not necdssary. The contention here made arises out of a mistake conclusion as to the requisites of an indictment based on the statute cited, which does not require an allegation of ownership where the building is a public one, and particularly where it is alleged, as here, that it was being used for a public purpose.

The reasons for the necessity of an allegation of ownership in an indictment for arson at common law and the immateriality of a like allegation under certain statutes, we discussed with some degree of care in State v. Myer, 259 Mo. l. c. 313. Although the statute under which the indictment at bar was drawn was not in question, a like interpretation of its requirements are applicable.

In the later case of State v. Bersch, 276 Mo. l. c. 412, the reasons for the immateriality of an allegation of ownership are likewise adverted to.

However, we are not without precedents more concretely applicable to the contention here made.

In State v. Johnson, 93 Mo. 73, an indictment for burning the State Penitentiary was held to sufficiently charge the crime, although no ownership in the public of the buildings burned was alleged. It is true that this case was criticised in State v. Whitmore, 147 Mo. 78, in that an allegation of ownership should have been alleged in charging arson under the particular section upon which the indictment in the Johnson case was drawn. In so ruling, it was held, in passing, that if the indictment had been drawn upon the section here under consideration, an allegation of ownership would not have beep, required.

In State v. Hunt, 190 Mo. 353, in which an indictment for burning a church building was drawn under the section here under review, the court held that the building did not belong to that class in respect to which ownership should be alleged in charging the arson of same; that the allegation that it was the property of a particular church was immaterial and might have been disregarded.

That the rule as thus stated obtains under like statutes in many other jurisdictions is attested by the following cases: Sands v. State, 80 Ala. 201; Lockett v. State, 63 Ala. 5; Mott v. State, 29 Ark. 147; State v. Roe, 12 Vt. 93; People v. Van Blarcum, 2 Johns, (N. Y.) 105; Stevens v. Commonwealth, 4 Leigh, (31 Va.) 683; State v. Temple, 12 Me. 214.

II. Appellant is not entitled to a consideration of his assignment of error on account of a refusal of the trial court to grant a continuance. Nothing is preserved in the transcript concerning this assignment, except a record entry of the application and the ,. „ . , . » overruling of same. This presents no matter subject to review. 'If the motion had been preserved under the general rule, the action of the trial court in overruling same would not have been disturbed unless there had been a showing of prejudice to the substantial rights of the appellant. We have uniformily so ruled, which is in accord with reason and has the sanction of the statute (Sec. 3996, R. S. 1919) which provides that “continuances may be granted to either party in criminal cases for good cause shown.” Certainly in the absence of any showing to the contrary, the presumption must obtain that the discretion exercised by the trial court was proper. [State v. Belknap, 221 S. W. (Mo.) l. c. 44.]

III. A witness for the State, who had testified before the grand jury, manifested a hazy memory when examined at the trial. The trial court permitted the prosecuting attorney to withdraw the witness to refresh her memory as to her former testimony. This procedure is assigned as error. Subsequently, upon being re-examined, she testified as to certain admissions of guilt made to her by the appellant, and that she had so stated before the grand jury. The only ground of error alleged is as to the manner employed in refreshing the witness’s memory. We held in State v. Patton, 255 Mo. 245, in an exhaustive review of this question by Fapjs, J., that where a witness, who had been before the grand jury, appeared to be hostile, evasive or of hazy memory, it was permissible, in the manner there defined, to use his testimony taken before that body to refresh his memory. In that case, as in State v. Riles, 274 Mo. 618, the refreshing process was while the witnesses were on the stand. This course is more in accord. with regular and orderly procedure than that pursued in the case at bar, and should be followed in the exercise of that discretion with which trial courts are vested in the conduct of cases, unless a different pro: cedure seems necessary; then, if there is an absence of any prejudicial effect, we will not interfere. There is nothing tending to show that the appellant was in any wise deprived of a fair trial by reason of the variance in the matter stated from the usual procedure. We, therefore, overrule this contention.

Supplemental to the foregoing is the contention that no one except the husband should have been present when the prosecuting attorney was refreshing the memory of the witness. In what manner this constituted pi'ejudice is not stated. The contention is trivial.

IY. Appellant contends that he was surprised at the testimony of one of his witnesses, who stated that appellant had said to him that he intended to burn the school house. As a general rule surprise at evidence is not a ground for a new trial, and in the matter of the testimony of one’s own witnesses, a new trial will not be authorized except upon a showing that the defendant could not have known what the testimony of the witness would be. There is nothing here to show that the appellant did not have this opportunity, and it was incumbent upon him to show this fact. He sliould, therefore, not be given a new trial, on the ground of surprise arsing out of his own negligence. [Curry v. Commonwealth, 25 Ky. L. 281, 74 S. W. 1077; White v. State, 40 Tex. Cr. 366, 43 S. W. 512.]

However, if this contention was based upon facts which under the rule of procedure authorize either a continuance or the granting of a new trial, appellant is precluded from urging it here because on direct examination of his own witness he brought out the testimony upon which he now seeks to base his complaint of surprise ; and when the State upon cross-examination showed by the same witness that it was the appellant who had made the threat or statement, no objection was interposed thereto. [State v. Currier, 225 Mo. l. c. 650.] This contention can not be made for the first time in a motion for a new trial.

Furthermore, if timely objection had been interposed, appellant should, at the time, have asked for a continuance. [State v. Whitsett, 232 Mo. l. c. 525.] While the ground of surprise in the Whitsett case was on account of the testimony of a witness for the State, the rule there invoked will apply with equal force to the case at bar.

The rule is the same in civil as in criminal cases, as is well illustrated in Bragg v. Moberly, 17 Mo. App. 221, cited with approval in Byrd v. Vanderburgh, 168 Mo. App. l. c. 120. In the Bragg case, Philips, J., in his usual forceful manner, thus defines the duties of a party who assigns surprise as error: “If a party be surprised by an unforseen occurrence at the trial, he should make his misfortune known to the court instantly and ask for a reasonable postponement to enable him to produce the countervailing proof. If he can relieve himself from his embarrassment by any mode, either by a nonsuit or a continuance, or the introduction of other testimony, or otherwise, he must not take the chance of a verdict, but must at once fortify his position by resorting to all available modes of present relief.”

V. Appellant contends that he should be granted a new trial on the ground of newly discovered evidence. This contention is made on an unsupported allegation in the motion for a new trial defining the character of the newly discovered,evidence. This is not enough. We have repeatedly held that facts stated in a motion for a new trial do not prove themselves, however true they may be; and that they must be proved by affidavit or otherwise and the proof incorporated in the bill of exceptions or stated in the bill and certified to be true by the judge. [State v. Walker, 232 Mo. 252.] Not only is it required that the motion for a new trial on the ground of newly discovered evidence be supported by proof, but, as we said in the Walker case, it is not sufficient that the affidavit he made by the defendant, but under a long and well-settled rule, announced by this court, the affidavits of the witnesses, who it is alleged will testify to the newly discovered facts, must accompany the motion for a new trial. The procedure necessary to preserve for review the error here assigned not having been'observed, the contention is not subject to review.

In addition, the effect of this newly discovered evidence, as disclosed by the statement of its nature, would have simply been to assail the credibility and impeach the character of appellant’s own witness. [State v. Arnett, 210 S. W. (Mo.) 82; Sang v. St. Louis, 262 Mo. 464, 171 S. W. 347; State v. McKenzie, 177 Mo. 715.]

Demurer. YI. The demurrers interposed to the testimony were properly overruled, there being substantial testimony to support the indictment. [State v. Conley, 217 S. W. (Mo.) 29; State v. Bidstrup, 237 Mo. 273; State v. Fields, 234 Mo. 615; State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 205.]

VII. There was no prejudicial error committed in the admission or rejection of testimony; and the instructions given follow well-established precedents applicable to a prosecution under the statute in question.

VIII. The remarks of the prosecuting attorney assigned as error were not preserved in a manner to authorize our review of the same.

There being no error authorizing a reversal, the judgment of the trial court is affirmed.

All .concur.


text:
    GEORGE W. DIERS and BLANCHE DIERS, Appellants, v. IDA F. PETERSON and SYLVESTER P. PETERSON.
    Division Two,
    November 19, 1921.
    1.BOUNDARY LINE: Retaining Wall: Acquiescence. Tlie building of a retaining wall between two lots, on a line with stakes marking the corners and with a mark in the curbstone, is tantamount to a claim of ownership; and occupancy of one of the lots up to and including the wall by its owners for fifteen years, with the acquiescence of the then owner of the other lot, places the burden on the present owners of said other lot to show that’ possession of the land covered by the wall was subject to future ascertainment of the true line.
    2. -: -: -: Evidence of Agreed Line.. Where there is no evidence of the establishment of an agreed line between two lots, the possession and use of the lots on each side of a retaining wall, constructed on the supposed line, by the respective owners thereof for a long time, are evidence that the wall- was an agreed boundary, and it is only necessary that such possession and use continue long enough to show that the respective owners knew the true boundary between their lots.
    3. -: —-: Adverse Possession: Mistake: Intention. If the owner of a lot, by mistake and in ignorance of the true boundary, in building a retaining wall upon the supposed line encroached upon his neighbor’s lot and he had no intention of taking what did not belong to him, the fact that he may have enclosed a larger area than his deed called for would not destroy the adverse character of his possession, if his intention was to claim and hold to the outside face of the wall. But if he built the wall along and upon what he believed was the true line and intended to claim only to the true -line, then his possession of so much of the adjoining lot as was by mistake'covered by the wall, was not adverse.
    4.-: -: -: -: Burden: Limitations. Where there is no evidence tending to show that defendants ever intended to limit their claim of ownership to the true boundary line when ascertained, the burden of proving that they intended to claim to the true line when that should be ascertained is upon the plaintiff; and the evidence must clearly show the existence of such, qualified claim sometime prior to the ripening of title by limitation.
    5. -: Survey.* Even tbougb tbe surveyor begins at tbe right starting point bis survey has no probative value unless it or bis testimony gives the distance “to the points or lines from which he established the lines of the lots” as the statute .(Sec. 12721, R. S. 1919) requires.
    Appeal from Jackson Circuit Court. — Hon. Allen G. Southern, Judge.
    Appiemed.

      Stubenbraueh & Harts for appellants.
    (1) This is an action in equity. In such cases this court will review tbe facts and determine upon tbe correctness of the judgment. Herryford v. Moore, 181 S. W. 390; G-ill v. Newhous'e, 178 S. W. 495; First National Bank v. Fry, 216 Mo. 24; Myers v. Scbucbmann, 182 Mo. 159; Primm v. White, 162 Mo. App. 594, 142 S. W. 802; Grazt v. City of Kirkwood, 165 Mo. App. 196; Courtney v. Blackwell, 150 Mo. 245. (2) Tbe defendants made no claim! to plaintiffs ’ property under color of title. The defendants in their pleading assert that they have had the possession of that part of plaintiff’s property now in dispute for more than ten years under claim of ownership and therefore have title by limitation. In such cases to make title by limitation two things are necessary; first, actual physical possession of the property in dispute, and second, such possession must be accompanied by a claim to the title. Either one without the other is not sufficient. Benne v. Miller, 149 Mo. 228; Golterman v. Schiermeyer, 125 Mo. 291; Stevenson v. Black, 168 Mo. 560; Ware v. Cheek, 201 S. W. 847. (3) The evidence, however, did not show any actual physical possession of plaintiffs’ property by defendants before 1913. The acts relied upon to establish possession must always be as distinct as the' character of the land reasonably admits of and should be so patent that the owner of the ground could not be deceived. G-olterman v. Schiermeyer, 125 Mo. 291; Mnsiclc v. Barney, 49 Mo. 463; 2 Corpus Juris, 55. Nor did defendants make any claim to the title to that part of plaintiffs’ ground now occupied by defendants’ improvement before the summer of 1913. • (4) The evidence fails to show that defendants intended to claim title to the north edge of the improvements in question regardless of the true line. Defendants claim they never knew that their improvements were in any respect on plaintiffs’ property, and that they did not know it now. How, then, can there be adverse possession?

      Milford W. Rider for respondents.
    (1) The finding of the trial court that defendants have been for more than ten years prior to the bringing of this suit, in open, notorious, exclusive, continuous and adverse possession under a claim of ownership of the tract in question, was warranted by the evidence. Bing-ham v. Edmonds, 210 S. W. 885; Walbrunn-v. Bailen, 68 Mo. 164; Mather v. Walsh, 107 Mo-. 121. (2) Actual, continued, notorious and hostile possession is tantamount to a claim of ownership. Wilkerson v. Eylers, 114 Mo. 254. (3) Where persons in possession of land hold possession for the statutory period up to a line claimed by them to be the true line, then such possession is adverse. The mere fact that such person is ignorant of the true line does not weaken his rights where he has, for the necessary period, claimed that the line as held by him was the true line. Mangold v. Phillips, 186 S. W. 488; Walbrunn v. Bailen, 68 Mo. 164; Batner v.. Baker, 108 Mo. 311; Davis v. Braswell, 185 Mo. 576, 581; French v. Pearce, 8 Conn. 440, 21 Am. Dec. 680; Eennert v. Shirk, 163 Ind. 542; Anderson v. Buchanan, 116 N. W. 694; Hitchings v. Morrison, 72 Me. 331'; Sadtler v. Peabody Heights Co., 66 Md. 1; Matthews y. Ey Co., 110 Mich. 170, 64 Am. St. 336; Seymour, S.'& Co. v. Carli, 31 Minn. 81; Weeks v. Upton, 99 Minn. 410; Crary y. Goodman, 22 N. Y. 170; Barnes v. Light, 116 N. Y. 34; Hindley v. Manhattan Ey. Co., 185 N. Y. 335; Eld-ridge v. Kenning, 12 N. Y. Supp. 693; Gist v. Doke, 42 Ore. 225. (4) Where there is a question whether a party holding land beyond the boundary line intended to hold adversely, if there were permanent improvements made and used by the claimant, this would tend to show an intention to hold adversely. Mangold v. Phillips, 186 S. W. 988; Hamilton v. West, 63 Mo. 93; Cole v. Parker, 70 Mo. 372. (5) Even if in this State color of title were necessary to originate ownership by limitation (see Quick v. Eufe, 164 Mo. 1. c. 412), that term, as used by appellants’ counsel has no place in the law of boundary lines established by adverse possession. If one enclosed more land than is called for in his deed, and it be the intention of the possessor to hold and claim as his own all the land enclosed and possessed, such claim of ownership to such land is matured into a perfect title by the open, notorious, continuous, exclusive possession for the statutory period. Vogt v. Bergman, 189 S. W. 1166; Bingham v. Edmunds, 210 S. W. 885; Shotwell v. Gordon, 121 Mo. 482; Mangold v. Phillips, 186 S. W. 988; Milligan v. Pritts, 226 Mo. 189; Handlan v. McManus, 100 Mo. 124; Hamilton v. West, 63 Mo. 93; Cole v. Parker, 70 Mo. 372. (6) Where adverse possession has been held for the statutory period up to a certain line, the burden is on the opposite party to show that such possession was with the intention of only claiming to the true line. Yogt v. Bergman, 189 S. W. 1166; Gloyd v. Prank, 248 Mo. 477; Mangold v. Phillips, 186 S. W. 988; Lemmons v. McKinney, 162 Mo. 525, 531; Bartlett v. Boyd, 175 S. W. 947; Hodges v. Pollard, 149 Mo. 216, 226.
   HIGBEE, P. J.

The petition states that plaintiffs are the owners of and entitled to the possession of the south 30 feet of the north 40 feet of lot 41, corrected plat of North Altamont, an addition in Kansas City, Missouri; that the defendants are the owners of a tract about 30 feet wide south of and adjacent to plaintiffs ’ lot; that the defendants, on or abont March —, 1915, wrongfully and unlawfully entered upon and erected certain permanent improvements upon the south one foot of plaintiffs’ premises, to-wit: a stone wall six feet high and twenty inches thick, made of stone and mortar, a concrete sidewalk, and part of a three-story building; that said unlawful occupation constituted a cloud on plaintiffs’ title, which plaintiffs are entitled to have removed. The prayer is that plaintiffs he adjudged to he the sole owners and entitled to the exclusive possession of the said lot and for a mandatory injunction ordering defendants to remove said improvements from plaintiffs ’ property, and for general relief.

The answer is a general denial, and a plea of more than ten years’ adverse possession, also of estoppel and laches. The court found the issue for the defendants on the plea of adverse possession.

The lots are each about thirty feet wide,'fronting on the west side of Brooklyn Avenue, and 124 feet deep; plaintiffs’ property being number 2928 and defendants’ number 2930, Brooklyn Avenue. Plaintiffs, George W. Diers, and his sister Blanche Diers, acquired title to their lot June 25, 1912, and took possession thereof at once. Defendants’ lot was about eighteen inches higher than plaintiffs ’ lot. Miss Diers testified that in the year 1913 the defendants began making improvements on the cottage on their lot, and also built a stone’ wall five or or six feet high, extending from the front of the lots westward a distance of 24 feet; from that point they built a concrete walk on the north side of the house thirty-two feet long, and from the west end of this they continued the wall to the rear end of the lots; that she protested to Mr. Peterson that he was encroaching on plaintiffs’ lot, but he insisted he was on the line. They offered in evidence an unofficial survey made by Mr. Clarke, a civil engineer, which showed that the north face of the stone wall at its east end extended eight-tenths of a foot over the line of his survey onto plaintiffs’ lot, and that this line intersected the north face of the wall at a point eighty-four feet west of the northeast corner of defendants’ lot, and that the west end of this line was fifteen-one-hundredths feet north of the north face of the wall. Defendants were engaged for several years in rebuilding their dwelling house, and when completed Miss Diers testified that the roof or covering over a door on the north side of the house projected one or two inches over the surveyor’s line. George Diers testified that he never talked to Peterson about his improvements being over .the line, but that he refused him permission to build a scaffold projecting over onto their lot, and that after the wall and the foundation of the house were completed, he told Peterson he thought it was over on plaintiffs’ lot.

The defendants bought their lot from Lee Utley in March, 1903. Sylvester Peterson testified that in the year 1902, Utley erected a' small cottage on the lot; built a concrete sidewalk in front of the. lot which extended north to the north line of the'triangle or strip in dispute prolonged east, and also constructed a stone retaining wall along the north side of his lot to keep the soil from washing away. This wall was from twelve to fourteen inches thick, and from one to two feet high. The north face of the wall was in line with the north end of the sidewalk, and with an arrow mark cut in the curbstone by Utley. The eastern portion of Utley’s lot was graded up to the wall about eighteen inches higher than plaintiffs’ lot. At the time defendants purchased the lot, Utley showed them the property and the north end of the sidewalk, the mark in the curbstone, and the north line of the wall as the north boundary of the lot. He also showed them two stakes, each with a tack in it, at the northeast and northwest corners of the lot, and another mark in the curbstone thirty feet south of the first mentioned mark as indicating the south line of the lot.

The testimony of the defendants is that they took possession of their lot in March, 1903, and have lived there ever since, occupying and improving the premises between the boundaries as above indicated, and claiming ownership in fee; that’Washington Linek, through whom plaintiffs derive title to their lot, owned the plaintiffs’ lot, and that in the summer of the year 1903 he built a wire fence along the north face of the stone wall which remained there about ten years or until it fell into disrepair; that in 1906, they constructed a concrete walk along the north side of their house about twenty-one inches wide on the top of and coinciding with the north face of this retaining wall. This walk was used by the defendants ’ roomers for ingress and egress through a side door in their house. They also filled the west part of their lot, which was low, and graded it back to the paved álley in the rear of the lot. In the year 1913 defendants raised the retaining wall to a height of five or six feet, the entire length thereof (except where the concrete walk was constructed on the north side of their house), building on the top of the old wall. They also rebuilt and enlarged their house, making it a three-story building. They denied that either of the plaintiffs ever claimed that defendants were encroaching on their property. A number of witnesses also testified that there was a cement walk, and a retaining wall twelve or eighteen inches thick, on the north line of the defendants’ lot, and that this wall was later increased in height, the present wall being built on top of the old wall. One witness, J. F. Stivers, a contractor, testified that he saw this wall in process of construction in 1902; that while he was painting Peterson’s house in 1913, Peterson was building on the old retaining wall that was there in 1902. This testimony was corroborated. by other witnesses.

The plaintiffs and a number of witnesses familiar with the premises testified in rebuttal, in substance, that there was no retaining wall or concrete walk as claimed by defendants prior to 1913; that there was a slight terrace between the lots, with vines or climbing roses growing on it; that if there was a retaining wall as claimed by defendants, it was covered up and they had never seen it.

It is unnecessary further to recapitulate the evidence. Suffice it to say that we have carefully read the evidence and in our opinion it sustains the contention of the defendants as to the facts in issue in the case.

I. The retaining wall was built by Utley in the year 1902, on a line with the stakes marking the northeast and northwest corners of the lot, the mark in the curbstone and the north end of the sidewalk. This act of itself was tantamount to a claim of ownership. Mr. Linck, through whom plaintiffs derive their title, built a post and wire fence along the north face of this wall in the summer of 19.03, which remained there until it fell into disrepair. He and his successors in title thus recognized the north face of the wall as the boundary line between the lots. The evidence is quite conclusive that the defendants had occupied their lot with the acquiescence of the successive owners of plaintiffs’ lot, claiming this wall as the south boundary, for more than fifteen years before this action was brought. Under these, circumstances, the burden was on the plaintiffs to show that the possession by Utley and the plaintiffs up to this boundary line was subject to future ascertainment of the true line. If there had been no evidence of the establishment of an agreed line, the possession and use of the lots on each side of this line by the respective owners thereof since the year 1902 are evidence that it was an agreed boundary and it is only necessary that such possession and use of the land continue long enough to show that they knew the boundary between their lots. [Martin v. Hays, 228 S. W. 741, 744, and cases cited.]

If, however, Utley, by mistake and in ignorance of the true boundary, in building the wall encroached on bis neighbors’ lot, and be bad no intention of taking what did not belong to him, the fact that be may have inclosed a larger area than bis deed called for would not destroy the adverse character of his possession, if his intention was to claim and hold to the north face of his wall. But if he built the wall along and upon what he believed to be the true line and intended to claim only to the true line, then such possession was not adverse. [Milligan v. Fritts, 226 Mo. 189; Mangold v. Phillips, 186 S. W. 988.] There is nothing, however, in the evidence that tends to indicate that Utley or the defendants ever intended to limit their claim of ownership to the true boundary # line when ascertained. The testimony is very distinct that Utley and the defendants at all times claimed to the north face of the wall. The burden of proving that they only intended to claim to the true line wherever that should be ascertained to be, was on the plaintiffs (Gloyd v. Franck, 248 Mo. 468, 477; Vogt v. Bergmann, 189 S. W. 1166; Nichols v. Tallman, 189 S. W. 1184), and the evidence must clearly show the existence of such qualified claim to possession at some time prior to the ripening of title by limitation. Conflicting testimony as to vague or uncertain conversations occurring after the rights of the party in possession has been fixed by possession and limitation, is not sufficient to reduce the character of the possession or to divest rights so acquired. The policy expressed by the statutes of limitation would be practically worthless if parol testimony were permitted to nullify rights conferred by the statute. [Hedges v. Pollard, 149 Mo. 216, 226.] When a boundary line is so established and possession is taken by the parties up to the line, “the deed is accomplished and each owns up to the line as fully as if it Avere a natural boundary and their respective deeds called for it. [Brummell v. Harris, 148 Mo. 430.] And in the same opinion it is said that possession and use up to such line is evidence of such an agreement." [Lemmons v. McKinney, 162 Mo. 525, 532.]

II. Mr. Clarke, a civil engineer, testified lie established the south line of plaintiffs’ lot and established the corners; that he started at the center of gtreet at the intersection of Brooklyn Avenue; that he did not find the original stakes at this time. Conceding the correctness of the starting point, neither his testimony nor the plat of the survey which he produced gave the distance “to the points or lines from which he established the lines of the lots,” as required by Section 12721, Revised "Statutes 1919. Even if. this survey had been made by the .official surveyor, it would have no probative value. ‘ ‘ The very purpose of the statute, requiring the surveyor to ‘giv.e the distances to the points or lines from which he established the lines of the lots,’ etc., was to make' them prima-facie evidence of the facts therein stated, and thereby avoid the necessity of resorting to parol evidence to show its accuracy, which otherwise would have to be done, where the surveyor was absent or dead.” [Clark v. McAtee, 227 Mo. 352, 184.] This was the only evidence on the part of plaintiffs tending to show that the wall encroached on their lot. As heretofore seen, it had no probative value.

The judgment of the learned trial court was for the right party and it is therefore affirmed.

All concur.