author: WHITE, C.

text:
    LILLIE J. WETZEL et al., Appellants, v. MOLLIE T. HECHT.
    Division Two,
    March 26, 1920.
    1. ¡WILL: Intention: Implied Life Estate. In construing a will effect must be given to the intention of the testator and, if necessary to carry out that intention, an estate, such as a life estate, may arise by implication from the terms of the will.
    2. -: -: Life Estate or Homestead. The will provided that “my homestead shall be left intact as long as my wife lives. After she leaves the homestead Lillie shall have this as a home, and at her death it shall go to Carrie; if both survive and neither occupy th'e property, said property may be sold and proceeds divided among the two.” Held, that the will gave to testator’s wife, not a homestead simply, to be terminated upon her subsequent marriage, but a life estate.
    3. -; -: Homestead During Life. Where the will declares that “my homestead shall be left intact so long as my wife lives,” the estate of the wife cannot be terminated by her subsequent marriage without ignoring the words “so long as she lives,” and also the word “intact.”

      4. -: -: Homestead and Quarantine. If it be contended that by the word “homestead” used in the will declaring “my homestead shall he left intact as long as my wife lives” the testator had in mind the statutory homestead given by Section 6708, Revised Statutes 1'909, whereby the widow, there being no minor children, is vested with a homestead during her life or widowhood, it may as well be contended that he had in mind Section 366, which provides that a widow, until dower be assigned, may remain in and enjoy the mansion house.
    5. —■-: -: Quarantine and Assignment of Dower. Under Section 366, Revised Statutes 1909, which provides that a widow may remain in and enjoy the mansion house until dower be assigned, her quarantine interest is not lost until dower is assigned, and by virtue of that interest she may maintain or defeat ejectment, or she may convey it and her grantee acquires the same right. And if the will declared “my homestead shall be left intact so long as my wife lives,” her dower cannot be assigned during her life, and consequently her quarantine right must remain undisturbed as long as she lives, for otherwise the homestead could not remain “intact.” By the words used the testator enlarged the estate which the statute gave his widow, and removed the contingency upon which it would terminate on her remarriage, and the result is a life estate by implication.
    6. -: -: Reconciling Inconsistencies: The Word Survive. The will declared that “my homestead shall be left intact as long as my wife lives. After she leaves the homestead Lillie shall have this as a home, and at her death it shall go to Carrie; if both survive and neither occupy the property, said property may be sold and proceeds divided among the two.” Held, first, that by the word “survive” he meant if the two daughters survive the lifetime of the widow; second, that by the words “after she leaves the homestead” he did not mean “if she leaves,” but meant any contingency by which she separated herself from the control of the property, either by death, marriage or abandonment, but that neither marriage nor abandonment would divest her of her quarantine right, which could be done only by her death. Thus construed, the apparent inconsistencies are harmonized, and the result is a life estate to her.
    Appeal from Morgan Circuit court. — Son. John G. Slate, Judge.
    Affirmed.

      Gapron, Butcher S Knoop and John J. Jones for appellants.
    (1) The controlling rule in construing wills, is to give effect to the intention of the testator as the same may he gathered from the instrument, if not violative of some established rule of law. Cox v. Jones, 229' Mo. 53.. (2) The intention of the testator must be .gathered from the will itself. Middleton v. Dudding, 183 S. W. 443. (3) The ordinary primary meaning is to be given the language of a will, unless other terms used in the will disclose that such meaning is repugnant to the testator’s intention. Cox v. Jones, 229 Mo. 53; Mace v. Hollenbeak, 175' S. W. 876; Lich v. Lioh, 158 Mo. App. 400. (4) While a testator may dispose of his property by a necessary implied devise, yet the presumption is very strong against his having intended any devise- not set forth in his will, There must be a probability arising from the whole will so strong that the testator intended to make the devise that it cannot be supposed that any other intention existed in the mind of the testator. Page on Wills, sec. 468; Eneberg v. Carter, 98 Mo. 651; 30' Am. & Eng. E-ncy. (2 Ed.) 697; 1 Jarman on Wills (6 Ed.j,-p. 499.

      B. M. Liv&say mid A. T. Dwnm for respondent.
    (1) The true intent and meaning of the testator is the cardinal principle in the construction of a will. And the court, construing the will, should place itself as nearly as may be in the position of the testator, so as to interpret his words in the light he intended they should have. Sec. 583, R. S. 1909; Gibson v. Gibson, 24 Mo. 227; fchoss v. Hoeh, 149 Mo. 325; Stewart v. Jones, 219 Mo. 614; Papin v. Pieclnoir, 205 Mo. 5-21; Tisdale v. P’rather, 210-Mo. 407. (2) The testator by the will involved in this case intended to devise to his wife, the defendant here, a life estate in the premises in question, and the trial court properly so found. Burnet v. Burnet, 244 Mo. 491; Armor v. Frey, 226 Mo. 646; Roth v. Rauschenbusch, 173 Mb. 582 ; Walton v. Drumtra, 152 Mo. 489 ; Stewart v. Jones, 219 Mo. 614; Cross v. Hoch, 149 Mo. 325; 8 Words & Phrases, pp. 6826, 6827, et seep (3) A life estate may be created, without using express words, by implication from a will, or by language of equivalent meaning. Burnet v. Burnet, 244 Mo. 498; Cross v. Hoch, 149 Mo. 343; Roth v. Rausehenbusch, 173' Mo. 591; Armor v. Prey, 22'6 Mo. 669. (4)i The evidence in this case does not show an abandonment by the widow of - the homestead in question; on the contrary, the evidence clearly and conclusively shows that she had not “left” the homestead. King v. King, 155 Mo. 406-; Leake v. King, 85 Mjo. 413; Holmes v. Nichols, 93 Mo. App. 515; Hines v. Nelson, 24 S. W. (Tex.) 541; 1 Words &> Phrases, p. 8.
   WHITE, C.

This suit, under Section 2535, Revised Statutes 1909, is to determine title to a tract of land in Versailles, Morgan County, Missouri. M. Joachimi, owner of the land, died in January, 1911, leaving a will. The construction of this will presents the issue between the parties. The defendant is the widow of M. Joachimi; the plaintiffs are his daughters by a former marriage.

Joachimi had four children at the time of his death; two daughters, Lillie, now Lillie Wetzel, and Carrie Walter, plaintiffs; and two sons, E. A. Joachimi and M. L. Joachimi, Jr. The will of M. Joachimi, executed in May, 1910, after giving a nominal sum to each of his two sons, E. A. Joachimi and M. L. Joachimi, Jr., disposes of the balance of the property in this clause:

“To my daughter, Carrie Walter, and to Lillie Joachimi, and my dear wife, Mollie G-. Joachimi, shall share alike in money and property left, after my debts are paid, except my homestead in Spurlock’s Addition, shall be left intact as long as my wife lives. After she leaves the homestead Lillie shall have this as a home, and at her death it shall go to Carrie Walter; if both survive and neither occupy the property, said property may be sold and proceeds divided among the two, and in case of Carrie Walter’s death before; Lillie Joaehimi’s death, said property shall go to Lillie Joaehimi or her heirs.”

This suit involves the property mentioned as the homestead in Spurlock Addition. After her husband’s death in 1911 Mrs. Joaehimi continued to live on the place until March, 1916', when she went to live with her daughter by a former marriage, at Tipton, Missouri. While there she married one EEecht in June, 1917, and had been living with him as his wife from that time up to the time of the trial in December, 1917'. While she lived at Tipton, and up to the time of the trial, the defendant continued in possession of the property; that is, she placed someone in charge who paid a small rent, and she retained charge of two rooms and kept a large part of her furniture in the house. She visited it occasionally from time to time during the two years she was absent, before" and after her marriage, and sometimes stayed all night there. She paid the taxes for 1916, and some prior years. She made repairs, papered, painted and put in sidewalks at different periods during the year 1917, both before and' after her marriage to Hecht. She paid all the taxes that were paid on the property after her husband’s death. She swore that neither of the plaintiffs had ever paid anyi taxes or made any repairs on the place; that no one lived with her, but that she lived alone on the homestead after her husband’s death until she went to live with her daughter in Tipton. She said she had no intention of going away from this home permanently; that she always looked upon it as her home, and treated it as a home. The trial court held that under the provision of the will set out the defendant had a life estate in the property and rendered judgment in her favor. The plaintiffs appealed.

I. The rule of construction invoked by counsel for both parties is well established in this State — that in corLS'triIiI1g a will effect must be given to the intention of the testator and, if necessary to carry out that intention, an estate, such as a life estate, may arise by implication from the terms of the will. [Burnet v. Burnet, 244 Mo. 491, l. c. 498; Walton v. Drumtra, 152 Mo. 489, l. c. 507; Armor v. Frey, 226 Mo. 646, l. c. 669.] To say that a life estate may be vested by implication is but another way of saying that the will must be construed from its four comers, the intention of the testator gathered from the entire instrument and carried into effect whether apt operative terms are used or not. The will, it is stated, was written by the testator himself, without the advice of an attorney, and the lack of aptness in the use of words is due to that fact.

II. It is argued by appellant that the testator, in using the word “homestead” in the will, had in mind the statutory homestead, provided by Section 6708, Revised. Statutes 1909, whereby the widow, there being ho minor children, is vested with an estate in the homestead during her life or widowhood. It is contended, therefore, that her rights ceased to exist by virtue of the statute when she remarried, and that no expression in the will prevented that result. If the testator had the law in mind it might as well be said he had in mind Section 366, Revised Statutes 1909; which provides that a widow, until dower be assigned, may remain in and enjoy the mansion house. Every one is presumed to know the law, and in writing a will a testator must be presumed to write it with understanding as to how the law would affect his estate in absence of any modification of that effect by the will. Under Section 366 the widow’s quarantine .interest is not lost until dower is assigned and by virtue of that interest she may maintain ejectment or defeat ejectment. She may convey it and her grantee acquires the same right. [Phillips v. Presson, 172 Mo. 24, l. c. 27; Thomas v. Black, 113 Mo. 66, l. c. 70; King v. King, 155 Mo. 406 ; Brown v. Moore, 74 Mo. 633; Smith v. Stephens, 164 Mo. l. c. 422; Coulson v. La Plant, 196 S. W. 1144, l. c. 1147.] The case last cited, opinion by Judge Graves, reaffirms the doctrine in the earlier cases construing that section. The right of the defendant under Section 366, therefore, would defeat recovery in this case, and would dispose of the case without further consideration hut that the trial court in rendering judgment determined the widow was entitled to a life estate.

III. In order to determine the propriety of that judgment the paragraph of the will quoted must be considered and construed. The first provision that challenges attention is the statement: “My homestead in Spurlock Addition shall be left intact as long as my wife lives.”

It is argued by appellant that by the word “intact” it is meant there should be'no sale or partition, of the property while the wife lives. By the same token, if it is to remain intact, whatever interest the wife had in it must remain the same as long as she lives. We couldn’t give effect to what evidently was in the' testator’s mind if her interest might be extinguished or abridged during the time of her life. If no change in interest could taire place, then her dower could not be assigned and consequently her quarantine right must remain undisturbed as long as. she lives.

If the testator had the statute relating, to homesteads in mind, evidently it was his purpose to extend her fight beyond the period of any marriage and until her death; that is, he enlarged-the estate which the statute gave her and removed the contingency by which it would terminate on her marriage. Further, if he had in mind the quarantine section (366) then he intended to forbid an action to assign dower during her life. This conclusion results, on the theory of the appellant, as to the testator’s intention in using the word “intact.”

What is meant by vesting a life estate by implication is that the intention of the testator when carried out has the effect to give one the enjoyment of property for life. Here, if the effect of the will is to prohibit an assignment of dower and thus to give the widow the full possession and enjoyment of the premises under her quarantine right as long as she lived — a right which she might convey and could not forfeit — the result is a life estate. There seems no escape from that conclusion. .

That result is reenforced by the last sentence in that paragraph of the will. In speaking of his two daughters the testator adds:

“If neither occupy the property, and if both survive, said property may be sold and proceeds divided between two. ” ,

By this he means the homestead need not remain “intact” if the two daughters survive. Survive what? Obviously the period during which the property is to remain intact, the lifetime of the widow.

This construction would be quite easy but for the apparent contradiction in the sentence sandwiched between the two mentioned, as follows: “After she (the widow) leaves the homestead, Lillie shall have this as a home and after her death it shall go to Carrie Walter. ’ ’

It is necessary to harmonize that with the rest, if possible, so as. to give effect to the whole. It is significant that the testator did not say if she leaves, but he said 11 after” she leaves. It was not a contingency but a certainty which he was providing for. There could be no certainty that she would abandon the property; there was certainty that she would die. It might be possible to say the testator had in mind any contingency by which she separated herself from the control of the property, either by death, marriage or abandonment. Either of these contingencies would be, in a sense, leaving the property. However, neither marriage nor abandonment would divest her of her quarantine right, to the full and complete enjoyment of the premises. That could only be accomplished by her death.

To recapitulate: the intention of the testator, as expressed in rather clear terms when he said the property was to be “intact” during the life of his wife, was to prohibit any change in that status of the property so far as her interest in it was concerned. All her rights, given to her by law, were to remain as long as she lived, and good against any assaults upon same either by suit for partition, assignment of dower, or any other proceeding which would affect the present state of title. Under that provision of the will and the quarantine statute she acquired in effect a life estate.

This would harmonize the apparent inconsistencies in the paragraph of the will quoted.

The judgment is affirmed.

Hailey and Mozley, (7(7., concur.

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

All of the judges concur.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    THE STATE v. HENRY C. FOSTER, Appellant.
    Division Two,
    March 26, 1920.
    1. INFORMATION: Shooting at Another. An information charging a crime under Section 4481, Revised Statutes 1909, is sufficient if it follows the language of the statute, since it embodies all the essential elements of the crime denounced and hence need not be pleaded.
    2. -‘ — : -: Omission of Word. Of. It is essential that an information charging the crime denounced by Section 4481, Revised Statutes 1909, allege that the act of shooting at another was done “on purpose and of his malice aforethought;” but the omission of the word “of” in the phrase that defendant “did then and there, on purpose and his malice aforethought,” etc., was not misleading did not destroy the sense of the sentence, nor impair the sufficiency of the information.
    3. -: -: Did Commit Great Bodily Harm. An information charging that defendant did shoot another “with intent....him ... .to maim and commit great bodily harm” does not, by the use of 'the words “commit great bodily harm,” injure defendant. These words are equivalents of an averment of an intent on defendant’s part to inflict an injury permanent in its nature, or more serious than an ordinary battery, but they mean nothing more than the word “maim,” and at their worst are only tautological.
    4. -Jeofails. Under the Statute of Jeofails (Sec. 5115, R. S. 1909) no defect or imperfection in an information which does not tend to the prejudice of the substantial rights of appellant can be of any avail on appeal,

      5. INTENT: Specific Proof: Inference. Even if proof of specific intent to maim another is necessary in view of the language of the statute, proof of facts from which the intent may be inferred is sufficient; and such inference may be drawn from proof that defendant shot another with a double-barreled shot-gun, loaded with leaden balls and gun powder, on purpose and of malice aforethought, and inflicted wounds calculated to maim.
    6. -: To Maim: Meaning. The word “maim” has no technical meaning, but means to inflict some serious bodily injury. Thus classified, there is no occasion to couple the commission of the act of shooting at another with a specific “intent to maim” in order to constitute the offense denounced by the statute (Sec. 4481, R. S. 1909).
    7. INSTRUCTION: Omission of Words “Of Malice Aforethought:” Jail Sentence. The statute (Sec. 4481, R. S. 1909) declared that “every person who shall, on purpose and of his malice aforethought, shoot at another, with intent to maim,” etc., shall be punished by imprisonment in the penitentiary not exceeding ten years. The instruction for the State, designed to cover the whole case, omitted the words “with malice aforethought.” Held, not error, for two reasons: first, another statute (Sec. 4904, R. S. 1909) authorized a conviction for a less offense and defendant’s punishment was assessed at twelve months’ imprisonment in the county jail; and, second, errors in instructions concerning a higher degree of the offense than that of which a defendant was convicted are not available to him.
    Appeal from Buchanan Circuit 'Court.: — Hon. H, W. Utts, Judge.
    Affirmed.

      Randolph dt Randolph for appellant.
    (1) The information in this case is fatally defective and the demurrer thereto should have been sustained. It is difficult to tell which section of the statutes this information was attempted to be drawn under. The charge of assault with intent to maim is coupled with the language “and commit great bodily harm.” Section 4481 is the section which mentions particularly assault with intent to maim, but there is no such offense in the ■ statutes as the offense of “commit great bodily harm.” The offense contemplated by Section 4482 is a distinct offense and is not an inferior degree of the offense contemplated by Section 4481. State v. Burk, 89 Mo. 639; State v. Lockwood, 119 Mb. 463. The indictment does not allege that the act was done of his malice aforethough, but uses this language: “and did then and there on purpose and his malice aforethought.” State v. Rector, 126' Mo. 340. (2.) The instruction offered by defendant in the nature of a demurrer to the evidence at the close of the evidence on the part of the ¡State should have been given as there was positively no evidence of any kind or character of any intent to maim. It was clearly shown that the purpose of the defendant was to drive the prosecuting witness from the premises where he was trespassing and tearing down the fence of the defendant. The distance between the prosecuting witness and the defendant at the time the shot was fired Would absolutely preclude the idea of an assault with intent to commit the crime of mayhem! Proof of an assault with intent to kill would not meet the evidence required under this information. State v. Kyle, 177 Mb. ©59; State v. Ballard, 1.94 Mo.'634. (3) In that same connection the court made improper remarks in the presence of the jury, and in that same connection the private attorney of the prosecuting witness made and was permitted to make improper remarks in the presence of the jury and to ask questions which were improper, with no other purpose than to create prejudice against the defendant. State v. Ulrich, 110' Mo. 365; State v. Prendible, 165 Mo. 354; State ‘v. Fisher, 124 Mo. 464; State v. Young, 991 Mo. 682. (4) It was improper and prejudicial to the defendant for the court to permit Mr. Lockwood, the private attorney of the prosecuting witness, to cross-examine defendant as to matters concerning which he was not asked on direct examination. R. S. 1909, sec. 5242; State v. Grant, .144 Mb. 63; State v. Hathhorn, 166 Mo. 239; State v. Kyle, 177 Mb. 663; State v. Bell, 212' Mo. 123. (5) The instruction for the State shows an effort to cover both Section 4481 and Section 4482, but does not follow the information in thatl it does not use the words “malice aforethought” and uses the term “to maim and do great bodily harm,” To assault with intent to maim is one offense cognizable under Section 4481, and an assault with intent to do great bodily harm is a separate and distinct offense under Section 4482 and they cannot be so combined in one instruction. If there is an intent to maim, then the intent to do great bodily harm is absent, except that maiming might result in great bodily harm. One offense is to do the act prohibited 'by Section 4480; the other is to do an entirely different‘act with an entirely different purpose. The punishment mentioned in the instruction is the punishment provided for in Section 4482. There can be no assault with intent to maim except “of'malice aforethought,” because such an assault is a deliberate assault conceived and carried out for the purpose of maiming the subject of the assault. State v. Priestley, 74 Mlo. 24; State v. Dalton,' 106! Mo. 464; State v. "Whit-sett, 111 Mo. 202; State v. School, 130 Mo. 396; State v. Hayden, 141 Mo. 311. (6i) The defendant was entitled to have the jury instructed as to the meaning of the word maim and that the assault must' have been with the intent to commit the crime of mayhem. The defendant specifically asked of the court to instruct on that point.

      Frank Wl McAllister, Attorney-General, and Lewis E. Cook, Special Assistant, for respondent.
    (1) The information is sufficient in form and sub:. stance. It fully informs the defendant of the nature and cause of the accusation against him. State v. Nieuhaus, 217 Mo. 343; Kelley’s Grim. Law & P'roe. secs. 580L582; R. S'. 1909, sec. 4483. (2) The instruction besides defining “feloniously” correctly states the law under Sec. 4483, R. S. 1909. State v. Webb, 266 Mo. 680. (3) The appellant complains because the court refused to instruct on the question of whether or not Aubuchon was in the.act of committing a trespass when the shot mentioned in evidence was fired. The instruction was properly refused under the evidence in the ease. Aubuchon was fifty yards from the appellant constructing a line fence with his back turned when appellant fired without warning. The testimony shows that the only reason the prosecuting witness committed an act of trespass was to prohibit file stock of the appellant from trespassing on the land in Aubuchon’s possession. Had death resulted from the shooting the appellant would have been guilty of manslaughter in the third degree and the appellant cannot be heard to complain. R. S. 1909, sec. 4463.
   WALKER, C. J.

Appellant ’was convicted in the Circuit Court of Buchanan County in June, 1919, of an assault with intent to maim and do great bodily harm and his punishment assessed at twelve months-’ imprisonment in the county jail. Prom the judgment rendered thereon he appeals.

Aside from formal averments, the information is as follows: “that on or about the 7th day of August, 1918, at said county, Henry C. Poster in and upon one Dennis Aubuchon, feloniously, on purpose and of his„ malice aforethought did make an assault, and did then and there on purpose and his malice aforethought feloniously shoot at him, the said Dennis Aubuchon, with a certain deadly and dangerous weapon, to-wit, a double-barreled shot-gun, loaded then and there with gun powder and leaden balls, which he, the said Henry C. Poster, then and there held in his hand, with intent then and there him, the said Dennis Aubuchon, on purpose, of his malice aforethought, feloniously to maim and commit great bodily harm; against the peace and dignity of the State.”

Appellant and the prosecuting witness, Aubuchon, occupied adjoining tracts of land. The former had built a wire gap in a fence which enclosed a small portion of his tract, the purpose of which was to admit his cattle to a spring of water. The fence of which this gap was a part, connected with that enclosing the land of Aubuchon. The latter objected to the use of the gap by the appellant for the purpose mentioned. On the morning of the assault, Aubuchon, aided by his sons and a hired man, went to where the gap> was located and -proceeded to tear it and the fence connecting it with appellant’s land down, and to build a closed fence of his own instead of that of appellant. The latter, having been notified of the proceeding, went to the scene, armed with a shotgun and an axe. Walking towards Aubuchon, he ordered him off of the premises. The latter ignored the order, when the appellant fired at him with the shot-gun, a few shots striking him on the hand and hip. Aubuchon, with his sons and help, left the scene. Appellant thereupon cut the wires of the fence Aubuchon had built and replaced his own fence and the gap.

I. The statute (Sec. 4481, R. S. 1909) upon which this prosecution is based provides, so far as applicable to the facts in evidence, that every person who shall on purpose and of his malice aforethought shoot at another with the intent to maim such person shall be punished by imprisonment in the penitentiary not exceeding ten years. Thus the crime of shooting at a human being is specifically prohibited and by the terms of the statute classified as a felonious assault. [State v. Curtner, 262 Mo. 218; State v. Bunyard, 253 Mo. l. c. 355.] An essential allegation in a charge based on this statute is that the act was committed feloniously, on purpose and with malice aforethought. [State v. Anderson, 252 Mo. 83; State v. Harris, 209 Mo. l. c. 434; State v. Temple, 194 Mo. l. c. 234; State v. McDonald, 67 Mo. 13; State v. Seward, 42 Mo. l. c. 208; State v. Harris, 34 Mo. 347.] The felonious intent with which the act was committed is properly charged. [State v. Bond, 191 Mo. 567.] As- we held in State v. Phelan, 65 Mo. 547, and numerous other cases reviewed in State v. Bond, supra, the charging of an offense under Section 4481 is sufficient which follows the language of the statute, which- embodies all of the essentials necessary to define the crime denounced and hence more' need not be pleaded. [State v. Bersch, 276 Mo. 397.] A charge thus framed conforms not only to the rules of criminal pleading that nothing shall be left to implication or intendment, but to the constitutional requirement that the accused shall be apprised of the nature and cause of the accusation against him. [State v. Stegner, 276 Mo. 427, 207 S. W. l. c. 828.]

It is also contended that the information is defective in the omission of the word “of” preceding the words “malice aforethought” in the phrase “and did then and there on purpose and hig malice aforethought,” etc. The omission of the word “of” was not misleading, did not destroy the sense of the sentence from which it was omitted and hence this contention is not entitled to serious consideration. The disposition of the courts in the review of criminal cases, while not ignoring or denying any substantial right of the accused, is to so construe the record of conviction as to promote the administration of justice. Such a purpose would be frustrated by the serious entertainment of such a frivolous contention as is here sought to be introduced. [State v. Keener, 225 Mo. l. c. 494; State v. Perrigin, 258 Mo. l. c. 236; State v. Massey, 274 Mo. 578.]

The addition of the words “and commit great bodily harm” following the word “maim” in the information is also a subject of complaint. In what respect the appellant is injured by this addition we are not told. The added words are the equivalents of an averment of an intent on the part of the appellant to inflict an injury permanent in its nature or more serious than an ordinary battery. [Territory v. Ayre, 15 N. M. 581; Lambert v. State, 80 Neb. 62; Boykin v. People, 22 Colo. 503; State v. West, 45 La. Ann. 14; McDonald v. State, 89 Tenn. 161.] In short, they mean nothing more than is expressed by the word “maim” and the only tenable objection which can be urged t,o their use is that it is tautological.' This may entitle the objection to rhetorical, but not to judicial, consideration. Ñor does the use of the words complained of come within the rule of criminal practice that if an allegation is made in an unnecessarily minute manner the proof must satisfy the descriptive as well as the main part, as one is essential to the identity of the other, because the descriptive words here are redundant or mere surplusage, and may be so regarded. [State v. Harris, 209 Mo. 423; State v. Akin, 94 Iowa, 50.] “Lest, therefore,” as Lord Hale said, in-effect, “such overgrown curiosity and nicety of expression as is here exhibited, should become a disease of the law, Ave apply the timely remedy of overruling this contention.” [2 Hale Pl. Cr. 193.]

Notwithstanding the disposal of all of the objections to the information under precedents respectively applicable to each, all might have been held insufficient and immaterial under the liberal provisions of our Statute of Jeofails, in That none embody any defects or imperfections which tend to the prejudice of the substantial rights of the appellant. [Sec. 5115, R. S. 1909; State v. Sovern, 225 Mo. 589; State v. McConnell, 240 Mo. 272; State v. Massey, 274 Mo. 585; State v. Allen, 267 Mo. 56.]

II. It is contended that there was a failure of proof of a specific intent on the part of appellant to commit the offense Avith which he was charged. This contention is based upon the assumption that an assault to maim or in fact any assault denounced in Section 4481 supra,- belongs to that class of crimes of which a specific intent to accomplish a particular purpose is an essential element, and for Avhieh proof of general malice or criminal intent will not sustain a conviction, and where this rule obtains, that the burden is on the State to establish, either by direct or circumstantial evidence, that the act was done with the requisite specific intent. In such cases, however, it is sufficient to prove facts from which the specific intent may be inferred. Such inference is authorized even in homicide cases from the character of the assault, the use of a deadly weapon and other attendant circumstances. To illustrate: In State v. Wansong, 271 Mo. l. c. 57, citing many cases, we held, in a case of felonious assault, that the use of a deadly weapon, in the absence of qualifying facts, would, authorize a presumption of law as to the murderous intent of the defendant. In State v. Merkel, 189 Mo. l. c. 319, an embezzlement case, we held that the intent of the defendant necessary to constitute the offense Avith which he was charged may be inferred from the doing of the wrongful act. In State v. Hall, 85 Mo. l. c. 673, a larceny case, a like rule was announced to the effect that! the defendant’s intent was presumed to he that which was the natural consequence of the offense with which he was charged. In State v. Doyle, 107 Mo. l. c. 44, a case of felonious wounding, an instruction was held proper which told the jury that they might, in the absence of qualifying* facts, if they found that the defendant committed the assault with a deadly weapon, infer that he intended to kill.

If the nature of the offense at bar is such as to justify the conclusion that proof of specific intent is necessary to sustain a conviction, then a like rule will apply to the foregoing eases, in which the offenses described are of such a nature as to render like proof necessary. As shown, however, we held affirmatively in these cases that a legal presumption of criminal intent as charged would arise from proof of the unlawful act. To particularize, that proof of an assault would authorize an inference of an intent to kill; and that proof of obtaining and withholding property under the facts in evidece would authorize the inference in the one case of an intent to embezzle and in the other of an intent to steal. The proof' in the casé at bar shows an assault with a deadly weapon and the infliction of wounds calculated to maim. Measured, therefore, by our former precedents, the act and attitude of the appellant at the time of the offense, his use of a deadly weapon, and the manner in which he inflicted the wounds upon the prosecuting witness (State v. Grant, 144 Mo. 56), are ample to sustain the conclusion that he intended the natural and probable consequences of his act and that an inference of guilty intent as charged was authorized.

While we regard the evidence adduced as sufficient to establish the specific intent with which the offense was committed, a reference to the rule announced in State v. Lentz, 184 Mo. 223, and in earlier cases, in reference to the proof of such intent, is not inappropriate. We there held that “if the statute does not, in creating the offense, couple with the commission of the act a specific intent, but simply makes the commission of the act a criminal offense, and the act is wrong in itself, the intent may he inferred from the unlawful commission of the act.”

The appellant is charged with an assault with intent to maim. The phrase “with intent to maim” is simply descriptive of the character of the offense. The words “to maim,” as we held in State v. Nieuhaus, 217 Mo. 332, have no 'technical meaning and should he construed in their plain ordinary sense; as usually defined, they mean the infliction of some serious bodily injury. The offense as charged, therefore, under a proper construction of the statute, may be designated as a felonious assault. [State v. Brown, 60 Mo. 141; State v. Thompson, 30 Mo. 470.] Thus classified, there is no occasion as required by the rule quoted, for coupling the commission of the act with a specific intent to maim in order to constitute the offense charged. Hence proof of the commission of the felonious assault will authorize the presumption of the criminal intent of the appellant as charged.

III. We have reviewed the record in an effort to ascertain if error was committed in the ruling;s on the testimony. The liberality of the trial court in the admission of testimony for the prosecution, as well as for the defense, is manifested in the length of ^ ^ranseiapp .Much of that admitted was irrelevant and that excluded was of a similar nature. The probative facts for the prosecution were plain and simple. They established the assault and the manner in which it was committed. Proof of the latter was sufficient to authorize the inference of criminal intent as charged. No material facts entitled to serious consideration were offered by the appellant in rebuttal. His defense was mainly technical. This will in a measure afford an explanation, if it does not furnish a reason, for the wide range of the testimony, especially that offered on behalf of appellant. A flood-tide of testimony, in the absence of defensive facts, increases opportunities for error. Despite this fact we have discovered no ruling upon the testimony which, upon a reasonable interpretation, can be held to' have been prejudicial to the defendant.

IY. Our holding as to the sufficiency of the indictment and that of the evidence to sustain the verdict, Pre^ermits any discussion as the propriety of the instruction asked by the appellant in the nature of a demurrer to the evidence.

It is contended that the instruction given by the court covering.the case was erroneous in the omission therefrom of the words “with malice aforethought.” This would have constituted error if the appellant’s punishment had been assessed under the statute upon which the information was based. This was not done, however, but in conformity with the instructions which were authorized by the testimony, and under the authority of Section 4904, Revised Statutes 1909, the conviction was for a less offense than that charged, the punishment being assessed at twelve months in the county jail. Appellant, therefore, has no cause of complaint, not only by reason of this statute, but under the rule of more general application, that we will not lend a listening ear to complaints of errors in instructions of a higher degree than that of which the defendant was convicted. - [State v. Gibbs, 186 S. W. 986 ; State v. Hutchison, 186 S. W. 1000; State v. Fleetwood, 190 S. W. 1.]

V. The somewhat voluble rulings of the court during the progress of the trial add.ed opportunities for objections thereto. However, an examination ^ese objections discloses no error either in the remarks of the court or of opposing counsel of sufficient materiality to justify our interference.

Accorded a fair trial and escaping with a light punishment, notwithstanding the probative proof of the crime as charged, to •■which there was interposed only a technical defense, the appellant has no just canse of complaint. Under such circumstances it becomes our duty to affirm the judgment of the trial court and it is so ordered.

All concur.


text:
    WEBB-KUNZE CONSTRUCTION COMPANY, Appellant, v. GILSONITE CONSTRUCTION COMPANY and ANHEUSER-BUSCH BREWING ASSOCIATION.
    Division Two,
    March 26, 1920.
    1. EXCAVATIONS: Measurements: Statute Part of Contract. The statute (Sec. 11971, R. S. 1909) applies to contracts for making earth excavations and must be read as a part of every contract pertaining thereto. Any rates expressed in the contract must be considered in connection with the statute.
    2.--: -: Trenches: Pier Holes: Special Agreement. The statute (Sec. 11971, R. S. 1909) provides that earth excavations, where no special agreement is made as to measurements, shall be measured by the cubic yard, and that for trenches and pier holes double measurements shall b.e allowed. The contract provided that the price for excavating trenches should be $1.15 “per cubic yard.” Held, that there was no special agreement as to the measurement of trenches, 'but the contract called for the statutory “cubic yard,” and the contract and statute, when considered together, meant that there should be twice as many cubic yards in the same number of cubic feet in the excavation of trenches as there are in other excavations. And the same is true of pier holes; where the contract said that the price for the 'excavation for pier holes should be $2 “per cubic yard,” it meant that the whole number of cubic yards of 27 cubic feet each thus excavated should be doubled. In each case the words “cubic yard” used in the contract, when applied to trenches and pier holes, meant just one-half the volume of an ordinary cubic yard.
    3. -: <-: -: -: -: In Specifications. The contract made the specifications “in their entirety” a part of the excavation contract, and they provided that “proposals for the foregoing work are to be based on the cubic yard,” firdt, “for the trenches for retaining walls,” and, second, “for the main body of the excavation,” and that “estimates are to be based upon the actual amount of material removed according to surveys taken from time to time, by a competent engineer employed by the owner.” Held, first, that the last clause was not inserted for the purpose of indicating how measurements should be made; but for the purpose of designating by whom they should be made; and, second, there was no special agreement as to the measurements, and the statutory cubic yard was meant, and the statute says that for excavations for “trenches and pier holes double measurements shall be allowed.”
    4. -: -: Interpretation of Contract: Monthly Settlements. The interpretation and construction which the parties themselves place upon a contract will be adopted by the court where the contract is ambiguous and reasonably susceptible of different constructions; but monthly payments of eighty-five per cent for work completed, and stated accounts showing the estimates of the excavation work done in cubic yards for trench work and the value thereof, do not indicate that by the words “cubic yards” was meant anything else than the statutory cubic yard, and are not to be considered as a construction of the contract' that the contractor was not to be allowed double measurement for such work, as the statute required, unless there is special agreement to the contrary.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.
    Reversed and remanded (with directions).

      Kinealy & Kinealy for appellant.
    (1) There can be no question of the right of the Legislature to enact Sec. 11971, R. S. 1909, regulating weights and measurements. Ex parte House v. Mayes, 2;27 Mo. 617. (2.) No custom or usuage can nullify the statute. Ex parte House v. Mayes, 227 Mo. 617; Green v. Moffett, 22 Mo. 529. (3) Section 11971 must be read into the contract here in question the same as if set out therein at length. Zellers v. Surety, 210 Mo. 86; Henry Co. v.' Salmon, 201 Mo. 136 ; .Isenliour v. Barton Co-., 190 M.o. 163; State ex rel. v. Rubber Mfg. Co., 149 Mo. 181; Reed v. Painter, 129' Mo. 674; State to use y, Berning, 74 Mo. 87. (4) Estoppel as a defense must be pleaded. McClure v. Bank, 263 Mo. 128; Turner v. Edmonston, 210 Mo. 411; Keeney v. McYoy, 206 Mo. 42. (5) To constitute an estoppel by conduct, tbe other party must have changed his position to his detriment or in some' other manner suffered injury. First Natl. Bank v. .Ragsdale, 171 Mo. 168; De Berry v. Wheeler, 128 Mo. 84; Johnson-Brinkman Co. v. Railroad, 12:6 Mo. 344; Bank v. Frame, 112 Mo. 502. (6) Moreover, there can be no estoppel where both parties have the same knowledge or means of knowledge. De Lashmutt v. Teetor, 261 M!o. 412; Harrison v. MoReynolds, 183 Mo. 533; Spence v. Renfro, 179 Mo. 417; Austin v. Loring, 63 Mo. 19; Bales v. Perry, 51 Mo. 449. (71) Where a contract is unambiguous the courts will enforce it regardless of any contention that the parties have) by their acts given it a construction different from what it is as it is written. Meissner v. Ry. Equipment Co., 211 M)o. 112; Wetmore v. Crouch, 150 Mo. 671; Produce Co. v. Olsen, 188 Mo. App. 181; Laughlin v. Joplin, 161 Mo. App. 161; Bader v. Mill & Lumber Co., 134 Mo. App. 1:35.

      Nagel S Kirby for respondents.
    (1) The statute on which alone appellant bases its claim and contention for double measurement, does not apply to the facts in the case at bar. R. S. 1909, sec. 11971. (2) The contract here does expressly provide the method in which measurements shall be made, and also the basis upon which estimates shall be made to determine the amounts of compensation for the various kinds of work. (3) Even if the contract were ambiguous on-that point, the parties have by their conduct interpreted it contrary to appellant’s contentions. Meissner v. Ry. Equipment Co., 211 Mo. 112; Knisely v. Leathe, 178 S. W. 458.
   WHITE, C.

The defendant IGilsonite Construction Company had a contract with the Anheuser-Busch Brewing Association to erect a large building on Block 884 in the City of St. Louis. The Gilsonite Construction Company thereupon made a contract with the plaintiff, WebbKunze Construction Company, to do- all the excavating for the building. After the excavation was finished satisfactorily to all parties) the plaintiff and the defendant Gilsonite Construction Company disagreed as to the method of measuring the work done in making the excavation. Thereupon the plaintiff 'filed its mechanic’s lien and sued the original contractor, Gilsonite Construction Company, and the owner, the Anheuser-Busch Brewing Association. A judgment was rendered in favor of the plaintiff, enforcing its lien in the sum of $2,975.64, and interest. This was in accordance with-the defendant’s theory of the way the work should be measured. The plaintiff claimed that the judgment should be for the full amount sued for, $19,470.65, in accordance with the plaintiff’s method of measurement. The plaintiff then appealed from the judgment.

The only dispute between the parties is as to the method of measuring the work done by the plaintiff. It is not disputed by respondent that if the method which plaintiff employed was correct it is entitled to judgment for the amount sued for, $19,470.65.

I. The differefice arises in the application of the statute, Section 11971, Revised Statutes 1909, to the measurement of trenches and pier holes, as follows:

“Sec. 11971. Whenever measurements of earthwork, stone masonry work, brickwork, stone-cutting work, plastering work or roofing work is in any case hereafter required to be made for any purpose, and no special agreemenb as to the measurements has been made by the parties, the same shall be made and the quantity thereof ascertained in the following manner and by the following rales: Earthwork — Earth Excavation Shall be Measured- bt the Cubio Yard. To ascertain the number of cubic yards of excavation made, take the length and multiply the same by the width and by the average height; the result will give the number of cubic feet, which, divided by twenty-seven, will be the amount of cubic yards. For all trenches and pier holes, double measurements shall be allowed. When earth is left in a cellar to protect the adjoining banks or walls, the same may be charged double the amount when required to be removed. ’ ’

If the pier holes and trenches excavated by the appellant are given double measurements, as provided in that section, then it is entitled to> the full amount sued for. The respondents claimed, and the trial court held, that the plaintiff was not entitled to the double measurements, provided in the section because' there was a “special agreement as to measurements” as mentioned in the section. That part of the agreement to which the .respondent calls attention as to measurements is as follows:

“Article XXI. In consideration of the faithful performance of every provision of this contract, to the satisfaction of Gilsonite Construction Company and the architect, Gilsonite Construction Company will pay to the subcontractor for all of this work and materials in place, under this contract, complete and accepted, the sum of excavation for all trenches including bracing and shoring, $1.15- per cubic yard.

“Excavation north of present railroad tracks forty cents per cubic yard.

“Excavation for pier holes under outside walls and three lines of piers, running east and west from north end of building-; with necessary bracing and shoring, two dollars per cubic.yard.”

It will be observed that the statute has this requirement: “Earth excavation shall be measured by the cubic yard..” It then proceeds to provide how a cubic yard shall be determined; the length, breadth and thickness in feet shall be multiplied together and divided by 27 for ordinary excavation; for trenches and pier holes double measurements shall be allowed. That is to say, there shall he twice as many cubic yards in the same number of cubic feet in the excavation of trenches and pier holes as there are in other excavations. Now that portion of the contract quoted above is not in contradiction of the statute. It only provides the price that shall be paid by • the cubic yard; $1.15 a cubic yard for trenches and $2 a cubic yard for pier holes; 40c per cubic yard for other excavations. The “cubic yard” mentioned in the contract is controlled by the statute; it is a statutory cubic yard. '

The statute necessarily applies to contracts for making earth excavations and must be read as a part of every contract of that character. [Isenhour v. Barton County, 190 Mo. 163, l. c. 173; Reed v. Painter, 129 Mo. 674, l. c. 680; Zellars v. Surety Co., 210 Mo. 86, l. c. 92.] The rates expressed in the contract must be considered in connection with the statute. There is not a word in that part of the contract indicating how the work shall be measured or what shall constitute a cubic yard. It relates only to the price to be paid after the measurement is made. The statute defines what is meant by a cubic yard when applied to trenches and pier holes, — just half the volume of an 'ordinary cubic yard, and the statute would be without' meaning altogether if a cubic yard, in the absence of a special agreement, were measured in any other way.

Appellant, however, invokes a statement in the specifications attached to the contract as indicating a special ag-reement as to measurements. The contract provides, after setting out the work to be done:

“The whole to be in accordance with the drawings and specifications for the work and in strict accordance with the plans and specifications, drawings and details furnished by Widman & Walsh, and Klipstein & Rathmann, architects, hereafter referred to as architects and engineers, and by the Gilsonite Construction Company. The said plans, specifications, drawings and details in their entirety shall be considered as a part of this contract. ’ ’

Turning to the specifications which the respondent claims furnished a special agreement as to measurements we find this:

“Proposals for the foregoing work are to he based upon the cubic yard:

“ (1) For the trenches for retaining walls.

“ (2) For the main body of the excavation, including removing old retaining wall on east side of Broadway and all other old walls or rubbish and loose natural rock which may be encountered.

“Estimates are to be based upon the actual amount of material removed according to surveys taken from time to time, and upon completion of the work, by a competent engineer employed by the owner. ’ ’

We notice, that this provision starts with the proposition that “proposals for the foregoing work are to be based upon the cubic yard.” So far, we are in strict accord with the statute; a, cubic yard, up- to this point, must necessarily be a statutory cubic yard. Then follows immediately “(1) for the trenches for retaining walls.” That certainly would be a statutory cubic yard for trenches. Pier holes are not mentioned in that part of the specifications. The concluding paragraph of that provision upon which the respondent laid stress is significant:

“Estimates are to be based upon the actual amount ox material removed, according to. surveys taken from ume to time; and upon the completion of the work by a competent engineer employed by the owner. ”

The proposals are to be “based upon the cubic yard” —a statutory cubic yard, of course. When estimates are made “from time to time” and at the conclusion of the work, these estimates necessarily must be “based” upon the actual amount of material removed; else how could they ever arrive at the statutory cubic yard? The actual amount of material removed first must be ascertained in cubic feet, then all estimates are “based” upon that.

Everything required by those provisions of the specifications necessarily arises in the application of the statute. But the significant part of that passage in the specifications is the making of the estimates “by a competent engineer employed by the owner. ’ ’ The paragraph was not pnt in for the purpose of indicating how measurements should be made, hut for the purpose of providing wlvo shall make the measurementsso that such measurements shall be under the control of the owner. If it had been intended to' provide a ‘ ‘ special agreement” for measurements, some language inconsistent with the statute as to what constitutes a cubic yard would have been used. The estimates are for the purpose of making payments, and are made after the measurements are furnished. There is no special agreement as to measurements in the specifications.

II. The respondent, however, asserts that the judgment was right because the parties had construed the contract so that pier holes and trenches were, to be measured singly and not as provided in the statute. The contract required payments to be made in monthly installments of 85 per cent of the work completed in the building, leaving a balance of 15 per cent of all the completed work unpaid, which balance should be paid when the work was entirely completed and delivered.

The defendants introduced a number of exhibits showing the estimates and settlements, from time to time which they claim shows a construction of the contract according to their theory. There were several of those introduced in evidence and the following illustrate all:

“Exhibit ‘A’
Oct. 2, 19X6.
“Gilsonite Const. Co.
To Webb-Kunze Const. Co., Dr.
“Excavation on Bevo Plant for A. B. B. Assoc., approximately as follows:
Trench Work, 4,500 Cys. at $1.15 ..................$5,175.00 '
Pit Work, 2,700 Cys. at .40 ...................... 1,080.00
Moving Heman’s shovel on job, labor .............. 71.05
$6,326.05'
“Exhibit ‘B’
Oct. 20, 1916.
“Gilsonite Const. Co.,
To Webb-Kunze Const. Co.
"Approximate yardage on treneh work for October: 2,000 Cys. at $1.15 ......................$2,300.00’
Less 15% ..........'..........................\.... 345.00
$1,955.00”
“Exhibit ‘C’
- Nov. 1, 1916.
“Gilsonite Construction Co., Dr.
To Webb-Kunze Const. Co.
“Approximate yardage on Bevo Plant to date: Trench work, 10,203 cu. yds. at $1.15 cu. yd. ..$11,733.45
Pit work, 2,700 cu. yds. at 40c cu. yd........... 1,080.00
Pier holes on 7th St., 160 cu. yds. at $2.00 cu. yd. 320.00
$13,133.45
Less previous estimate . 8,528.95
$ 4,604.50
“Extras - on Pay Roll, week ending Oct. 19 $119.10
Extras on Pay Roll, week ending Oct. 26 192.92
312.02
$ 4,916.52”
“Exhibit ‘D’
Nov. 24, 1916.
“Gilsonite Const. Co.,
To Webb-Kunze Const. Co.
“Approximate yards of trench excavates from Nov 1st to Nov. 24, 1916.
On 7th Street 130 ft. trench 1430 cu, yds.
On Arsenal & Bway. 90 ft. trench 990 cu. yds.
2420 cu. yds. at $1.15
$2,783.00”

It will be noticed in each of these statements there was an estimated payment upon the number of cubic .yards. The abbreviation in Exhibit A, “Cys.” doubtless means cubic yards, as does the word “yardage”’ in Exhibit B, and the expression “cu. yds.” in Exhibit C. There is nothing in these statements to indicate that “cubic yards” means anything else than statutory cubic yards. There is nothing in any dimensions given in those exhibits which would indicate that the amount of material taken out was in excess of what the statute provides. In “Exhibit D” the length of one trench, and perhaps the width of another, is given, but that is the only dimension. In one of the exhibits (not copied above). two dimensions of some pier holes are given, but in none are three dimensions given. The exact amount of earth removed in cubic feet cannot be determined; nor is there any evidence that the measurements were made and 27 cubic feet allowed for the cubic yards mentioned in these estimates.

Another provision of the contract is important also in considering the effect of settlements, even if the evidence had been more direct in support of respondent’s theory. The contract has the following- provision:

“Article XXVI. No payment made for work under this contract except the final payment, shall be conclusive evidence of the performance of this contract either wholly or in part, and no payment shall be construed to mean an acceptance of defective work or improper materials.”

While that provision is to the effect that no payment shall be conclusive evidence as to performance, performance would necessarily involve interpretation of the contract, and it may well be doubted whether the exhibits offered were competent evidence, even if they tended to show what appellant claims.

It is true that the interpretation and construction • which the parties themselves place upon a contract will be adopted by the court where the contract is ambiguous. That is, where the terms of the contract are reasonably susceptible of different constructions. [Meissner v. Ry. Equipment Co., 211 Mo. l. c. 133; Produce Co. v. Olsen, 188 Mo. App. 191; Laughlin v. Joplin, 161 Mo. App. 167.] The evidence offered does not in any way tend to show a construction of the contract different from its terms as indicated above.

The judgment is reversed and the cause remanded with directions to the trial court to enter judgment in accordance with the prayer of the petition.

Railey and Mosley, CC., concur.

PEE CUEIAM: — The foregoing opinion by White, 0., is adopted as the opinion of the court.

All of the judges1 concur.


text:
    THE STATE v. BEVERLY C. STEVENS, Appellant.
    Division Two,
    March 26, 1920.
    1. INDICTMENT: Embezzlement:-Conversion by Bailee. Under Section 4552, Revised Statutes 1909, which makes it an offense to convert money or property as a bailee with intent to embezzle it, an indictment charging that at a time mentioned defendant was the bailee of a certain note, describing it, which was owned by a certain other person; that while said note was so held by defendant, he, without the consent of the owner, converted it to his own use; that his intent in so doing was to deprive the owner of the same, and that in the manner aforesaid he did feloniously steal, take and carry away said note, etc., charges every essential element of the crime.
    2. -: -: Ownership. In an indictment charging that defendant unlawfully as bailee converted a note for $1500 to his own use, it was alleged that the note, executed by Henry Woods, was “payable to the order of” defendant and was “the right of action, valuable security and property of C. C. Sanders,” and was “delivered to and came into possession and under the care of” defendant “as bailee aforesaid, of, for and on behalf of C. C. Sanders.” Held, that the indictment is not bad because it does not allege that the note was indorsed by defendant to Sanders, but the ownership is sufficiently alleged to be in Sanders, and by the words used is more specific in that respect than it would be had it contained an allegation that the note had been indorsed by defendant to Sanders.
    3. -: -: Description of Note: Secured by Deed of Trust: Interest. In an indictment for embezzlement as bailee of a note payable when made to defendant, .it is not necessary that it allege that the note was secured by a deed of trust, that it bore interest at the rate of eight per cent after maturity, or that it was payable at the ■ office of defendant. Those things constitute matters of description not necessary to be pleaded under the statute, which makes the indictment sufficient if the instrument embezzled is described by any name or designation by which it may be usually known.
    4. OBJECTION'S: General. Objections to testimony must be specific, and upon an adverse ruling thereon exceptions must be saved; otherwise, they may be disregarded on appeal.
    5. EMBEZZLEMENT: Variance: Accounting: Intent; Where the crime charged embezzlement of a note by defendant as bailee, proof that, while the note was in defendant’s possession only for the purpose of effecting its sale for the benefit of the owner, defendant pledged it to a bank as collateral to secure the payment of his own debt, is competent to prove the intent with which the conversion was committed, and being competent for that purpose it cannot be ruled to have been offered to establish an accounting, and consequently there was no variance.
    6. INSTRUCTIONS: No Specific Assignment. A motion for a new trial in a criminal case should contain some definite reference to instructions complained of. Assignments that “the court erred in giving instructions upon the request of the State,” that “the court erred in the instructions given of its own motion” and that “the court erred in failing to instruct on all the law-of the case,” are too indefinite to authorize a review of the instructions on appeal.
    Appeal from St. Louis City Circuit Court. — lion. Rhodes E. Gave, Judge.
    Apfirmeo.

      Fauntleroy, Cullen & Hay for appellant.
    (1) The. court erred in permitting the State to show that defendant failed to> account for any proceeds of the fifteen-hundred-dollar note, which he was charged with embezzling. State v. Dodson, 72' Mo. 283'; State v. Crosswhite, 130 Mo. 363; State v. Mispagel, 207 Mo. 573; 9 R. C. L. 1295. (2) The indictment in this case charges that, the note embezzled was made payable to the order of B. C. Stevens, who is the defendant in the case. This is a specific allegation and tantamount to an averment that the defendant was the owner and holder of the note. First Nat. Bank v. Stallo, 145 N. Y. Supp. 747; Sec. 10001, R. S. 1909; State v. Farrington, 28 L. R. A. 398. (131) The note introduced in evidence was entirely variant. from the note described in the indictment: (a) It was payable at the office of B. C. Stevens, Clayton, Missouri; (b) It bore interest after maturity at the rate of eight per cent per annum; (c) It recited that it was secured by deed of trust of even date herewith; (d) On the back it was indorsed B. C. Stevens. By the endorsement of said note, B. C. Stevens became a party to it and bound as one of the original makers, and this feature, alone, establishes clearly the variance between the note pleaded and the one proved. Not only was objection made to the note on account- of this variance, but objection was made to the introduction of the deed of trust which was not mentioned in the indictment, and defendant was placed upon trial, charged with embezzling a note signed by Henry Woods, and as evidence of his guilt the State introduced a deed of trust, which was not mentioned in the indictment, and a note endorsed by B. C. Stevens, which was not mentioned in the indictment, and a note bearing interest, when no mention of interest was made in the indictment.' Under the authorities, there was a fatal variance between the allegations in the indictment and the proof. State v. Owens, 73 Mo. 442; State v. McNemey, 118 Mo. App. 66; Grant v. State, 17 So. 225; F'alkner v. Falkner, 78 Mo. 335.

      Frank W. McAllister, Attorney General, and Clarence P. LeMire, Assistant Attorney General, for respondent.
    (1) The second count is in a form substantially approved by this court. State v. Betz, 207 Mo. 589; State v. Orosswhite, 13:0 Mo. 358; Kelly’s Crim. Law & Prac. (3 Ed.), sec. 677; State v. C'astleton, 2'55 Mo. 201. (2) The State was permitted to show over the objection and exception of counsel for the appellant that the name of Beverly C. Stevens was indorsed on the back of the note in question. This was competent. It tended to support the allegation in the indictment to the effect that said note was the property of O. C. Sanders. Counsel for defendant also objected to the introduction in evidence of the deed of trust securing said note. Said deed of trust was competent to identify the note. It was a part of the original transaction and had been transferred along with the note in all subsequent transactions. State v. Burks, 159 Mo. 568. (3) The motion for new trial contains a general allegation of error in the gyving and refusing of instructions. This court has often held that instructions cannot be saved for review in that manner; therefore we shall not encumber this brief with a review of said instructions. State v. •Headrick, 149 Mo. 306;. State v. Snyder, 263 Mo. 664;. State v. McBrien, 265 Mo. 594.
   WALKER, C. J.

An indictment preferred to the grand jury of St. Louis County in December, 1914, charged the appellant in two counts with embezzlement; in the first with having, unlawfully converted to his own use a certain note for $1500, the property of one C. C. Sanders; in the second, with having unlawfully, etc., as a bailee, converted said note.

After a removal of the case by change of venue to the Circuit Court of the City of St. Louis a tiial was had resulting in a verdict of guilty under the second count and a sentence of three years’ imprisonment in the penitentiary. Appellant seeks a reversal of this judgment.

The second count of the indictment is as follows:

“And the grand jurors aforesaid, under their oaths aforesaid, do further present that Beverly C. Stevens, on or about the — day of July, 1913, at the County of St. Louis and State of Missouri, became and was the bailee of a certain right in action and valuable' ■security, to-wit, a promissory note for the sum of fifteen hundred dollars, dated the 17th day of August, 1912', executed by Henry Woods, and payable three years after date to the order of B. C. Stevens, said note being of the value of fifteen hundred dollars, the right in action, valuable security and property of C. C. Sanders, which said right in action, valuable security and property was delivered to and .came into possession and under the care of the said Beverly C. Stevens as bailee as aforesaid, of, for and on behalf of C. C. Sanders; and the said Beverly C. Stevens, the right in action, valuable security and property aforesaid did then and there feloniously and fraudulently embezzle and convert to his own use, without- the consent of the said C. C. Sanders, with the felonious and fraudulent intent then and, there to- deprive the owner, the said C. C. Sanders, of the use thereof; and so the said Beverly C. Stevens, the said right in action, valuable security and property, of the value aforesaid, the property of the said C. C. Sanders, in the manner and form aforesaid fraudulently and feloniously did take, steal and carry away and convert the same to his own use, against the peace and dignity of the State.”

The appellant resided in Clayton, St. Louis Coun-' ty, and was engaged in the real estate and loan business at the time of the alleged offense. In August, 1912, Sanders, the prosecuting witness,' purchased from the appellant a note for $1500 payable on its face to the appellant; the latter endorsed the note and turned it over to Sanders. This note was secured by a deed of trust which was also at the time turned over to Sanders. After holding the note about twelve months-, Sanders took it to the office of appellant and left it there to be sold or taken up'. Several months elapsed and appellant told Sanders from time to time that he was trying to sell the note, but was unable to find a buyer. In October, 1914, Sanders discovered that the Creve Coeur Farmers Bank in St. Louis County had advertised to sell the note at public sale, and on the 14th day of that month it was so sold and he bought it for the sum of $1082.50. The evidence discloses that in August, 1913, the appellant had taken the note and deed of trust aforesaid and deposited them as collateral security for money advanced to him by the Creve Coeur Farmers Bank on his personal note. This personal note was renewed from time to time between August, 1913, and October, 1914, and a payment or two made, but each time the note and deed of trust in question were deposited as collateral security by appellant to secure the payment of his own note to the bank. It further appears that prior to October, 1914, appellant made an assignment for the benefit of his creditors and that the sale of the collateral note by the bank was to satisfy appellant’s debt to it. This was the substance of the testimony on behalf of the State. The defendant offered none.

The points stressed by appellant for a reversal are: defects in the indictment, improper admission of testimony, and errors in instructions.

Stripped of formal averments required in h charge of the nature here under review, the presence of which is not challenged, the essential allegations of the indictment are that at the time stated the appellant was the bailee of a certain note, describing it, which was owned by one O. C. Sanders; that while said note was so held by. the appellant he, without the consent of the owner, converted it to his own use; that his intent in so doing was to deprive the owner of the same; and that in the manner aforesaid appellant did feloniously steal, take and carry same away, etc.

I. The count of the indictment under which the appellant was convicted was based upon Section 4552, Revised Statutes 1999. This statute; as we held in State v. Burgess, 268 Mo. 413, creates two of-tenses,; one tor embezzlement as bailee, and the other for converting or making away with money or property as a bailee with intent to embezzle it. The offense as charged in the count under which appellant was convicted is for an actual embezzlement as- bailee, and the intent pleaded is nothing more than a defining of the wrongful act with a felonious purpose necessary in any criminal charge. All of the averments essential to charge the offense $xe embodied therein. It is even more specific than-is required under the Statute of JeoEfails (Sec. 5108', R. S. 1909) applicable to indictments for offenses of this character, and from it no difficulty is encountered in ascertaining the nature and cause of the accusation. It follows with exactness as to material averments the form approved in State v. Crosswhite, 130 Mo. 358, and, free from the defects noted in the Burgess case, supra, it complies with the requirements held therein to be necessary in framing a charge of this nature.

A more specific contention as to the insufficiency of the indictment is urged in that it alleges that the note was made payable to the appellant or his order, but does not aver that it was indorsed by him to Sanders; that on its face the ownership of same was in the appellant, who could not be held to have embezzled his own property. It is insisted in support of this contention that the indictment should have, in, addition to the description it contained of the note, the further averments that the note Was payable at the office of the appellant; that it bore interest at the rate of eight per cent per annum after maturity, that it was secured by a deed of trust of even date therewith and that the name of the appellant was indorsed on the back thereof. The context of the indictment furnishes a satisfactory answer to the contention as to the allegation of ownership. In addition to the averment that the note was made payable to the appellant or his order, it is alleged that the right of action on said note and the property in same was in C. C. Sanders. This is even more specific than if it had'been alleged, as it is contended should have'been done, that the note had been indorsed by the appellant to Sanders. So far, therefore, as concerns the allegation of ownership it is sufficient to meet the requirements of a pleading of this character and to render the note subject to embezzlement by the appellant.

As to the further description of the note which it is contended should have appeared in the indictment, it will be sufficient to say that it constituted matter of description not necessary under our statute to' be pleaded. This statute, to which we have heretofore referred, Section 5108, supra, provides, among other things, that in any indictment for embezzling any instrument it shall be sufficient to describe the same by any, name or designation by which it may be usually known or by the support thereof, without setting out any copy or facsimile thereof or otherwise describing the same or its value. In ruling upon this statute in State v. Clinton, 67 Mo. 382, and in State v. Carragin, 210 Mo. 371, we held that if the indictment contains enough to notify the defendant of the charge against him, such minuteness of description as is contended for in the case at bar may be dispensed with. To a like effect are the cases of State v. Sharpless, 212 Mo. 202, and State v. Jackson, 221 Mo. 506, which, in construing the statute, Section 5108, supra, are also determinative of the sufficiency of the indictments, holding that the descriptions by their purport of thq instrument therein did not constitute such variances between the charges and the evidence offered in proof thereof as to be material to the merits and hence were not prejudicial to the defendants.

Although the crime with which the appellant is charged in this case is statutory (State v. Burgess, 268 Mo. 407) and hence must be so charged as to specifically bring the accused within its terms, the description of the note in the indictment was sufficient to comply with this requirement, in that nothing was left to implication or intendment. There is no merit, therefore, in appellant’s contention in this behalf.

II. The contention is also made that there was a variance between the crime charged and that proved. On technical grounds we would-be authorized in disregarding this objection in not having 'been preserved in such a manner as to entitle it to consideration. We have repeatedly held that objections to testimony must be specific and upon an adverse ruling thereto counsel must save exceptions. When the State offéred to prove that appellant had in no way accounted to Sanders for the note a formal objection was made' by counsel and sustained by the court. Upon a more general inquiry in regard thereto counsel for appellant contented himself with remarking: “We are not charged with a failure to account.” This was simply an expression of opinion as to the relevancy of the testimony and when the court said, “He may answer,” no effort was made to save an exception and thus challenge the correctness of the ruling. However, if this, irregular and, as we view it, insufficient manner of objecting to the introduction of testimony and the saving of exceptions he waived, there is no merit in the contention. The crime charged was the embezzlement of the note by the appellant as a bailee; the proof showed that while it was in his possession only for the purpose of effecting its sale for the benefit of the owner, appellant pledged it to a bank as collateral to secure the payment of his own debt. Testimony introduced, therefore, that he had not accounted for the note was admissible if for no other purpose than to show the fraudulent and unlawful character of the transaction or the felonious intent with which the act was committed. The relevancy of testimony of the character here complained of was discussed by us in State v. McWilliams, 267 Mo. 456, as it had been in-a number of earlier cases; while not ruling upon its admissibility, which wag conceded, we held it sufficient proof of a felonious intent to sustain a verdict of guilty. It is apparent that the objection to the testimony complained of is based upon an erroneous conclusion as to the purpose of its admission, which was not to prove the crime, but the intent with which it was committed; admissible for that purpose, it constituted no variance and hence the contention of appellant is devoid of merit. The cases cited in support of the contention are not parallel in their facts with those in the case at bar and hence have no ruling effect in this matter. We refer to State v. Mispagel, 207 Mo. 573; State v. Crosswhite, 130 Mo. 358 ; State v. Dodson, 72 Mo. 283.

III. Appellant complains of the instructions. The error thus assigned is sought to be pre- -, . i-, ,. r. i. • 1 served m the motion for a new trial as follows:

“Because the court erred hi giving instructions to the jury upon request of the State.

“Because the court erred in giving ¡instructions given upon the court’s own motion.

“Because the court erred in failing to instruct the jury on all the law of the case.

“Because the court erred in refusing the instructions offered and requested by defendant.

“Because the court erred in giving instructions requested by defendant in a modified form.”

These sweeping averments afforded the trial court no opportunity — as is the purpose of a motion for a new trial — to correct the errors now contended by the appellant to inhere in the instructions. As much would have been expressed and the trial court equally enlightened if, instead of the several averments, one had been employed which alleged that the court erred in giving and refusing instructions. The statutory mandate (Sec. 5312, R. S. 1909!) that we shall in criminal eases, regardless of assignments of error, render judgment upon the record before us, means such a record of the trial as is required by our rules of procedure to be preserved for our review. We have repeatedly ruled that motions for new trials in criminal cases should, if instructions are complained of, contain some definite reference thereto although it extends no further than a numerical reference to such instructions (State v. Othick, 184 S. W. 106; State v. Gilbert, 186 S. W. 1003; State v. Gifford, 186 S. W. 1058; State v. Miller, 188 S. W. 87; State v. Fleetwood, 190 S. W. 1; State v. Harris, 245 Mo. 445; State v. Snyder, 263 Mo. l. c. 668; State v. Rowe, 196 S. W. 7; State v. Katz, 266 Mo. 493; State v. Levy, 262 Mo. 181; State v. Hammontree, 177 S. W. 367; Polski v. St. Louis, 264 Mo. 458; State v. Lewis, 273 Mo. 532); this is but fair to the trial court and is no wise prejudicial to the defendant. A compliance with this requirement, as we held in State v. McBrien, 265 Mo. l. c. 604, and in State v. Selleck, 199 S. W. 129, is within the statutory injunction (Sec. 5285', R. S. 1909) which provides that a motion for a new trial “shall set forth the grounds or causes therefor.” There is no reason why the rule should not have been observed in this case. A failure so to do precludes an examination of the instructions, which we are authorized in presuming correctly declared the law.

The facts present no extenuating circumstances ini this case; as a consequence no defense was interposed to the merits. The appellant, indifferent to the trust reposed in him by the owner of the note, deliberately converted it to Ms own use by pleading it as collateral to secure a personal debt and now seeks solely through the interposing of technical objections to the manner of his trial to escape the consequences of his crime. None of these have we found of. such, materiality as to authorize an interference with the judgment of the trial court, which is therefore affirmed.

All concur.