source: Caselaw Access Project

author: ROT, C.

license: Public Domain

text:
    THE STATE v. EVERETT BOBBITT, Appellant.
    Division Two,
    April 17, 1912.
    1. INSTRUCTIONS: Conspiracy: Arson. An instruction upon conspiracy to commit arson, covering tbe setting of the fire during the absence of the defendant, is held to be, as set out in the opinion, a clear statement of the law as applicable to the evidence.
    2. -: -: -: Evidence. In this prosecution for arson two witnesses testified to a conspiracy and implicated the defendant as a co-conspirator with them. The court instructed the jury that the only question for them was “the guilt or innocence of the defendant,” and that they should consider the guilt of the two witnesses mentioned “only as affecting their credibility.” BeH, that the instruction is not erroneous.
    3. -: -: -: Alibi. In this prosecution for arson there was evidence of a conspiracy to commit the crime which included the defendant. The court instructed the jury that, if they believed the defendant was elsewhere and they had a reasonable doubt of his presence at and during the commission of the crime, they should acquit him, unless they believed beyond a reasonable doubt that he was a party to the conspiracy and guilty under the other instructions. This instruction is challenged as not being “as full and complete as the defendant was entitled to.” BeH, that while the first part of the instruction is not happily expressed (a matter not complained of in the defendant’s brief), yet it did not mislead the jury, and is not erroneous.
    4. -: -: -: -: Covering Both Theories. Where the State prosecutes upon two theories, to-wit, that the defendant was either actually present at and during the commission of the crime, or that, though absent, he was a party to a conspiracy to commit the crime charged, an instruction was properly refused which, while it directed concerning actual participation, omitted reference to conspiracy.
    5. COMPLETED CRIME: No Conviction of Attempt. Where the evidence is clear that the crime charged has been committed, the accused cannot be convicted of an attempt to commit it, and no instructions should be given on the latter theory. [R. S. 1909, sec. 4895.]
    6. ARSON: Cross-Examination: Turning State’s Evidence. Where the testimony of a witness who has turned state’s evidence in a prosecution for arson and admitted his complicity in the offense charged, shows that he was arrested on a charge of forgery and made a statement to the prosecuting attorney concerning the arson; shows too that the forgery case has never been called for trial, but does not show that he was promised anything further; and where the examination as a whole fully covered the ground and showed contradictory statements so that the jury evidently would not have convicted on his evidence had it not been corroborated by the undisputed facts, it cannot be said that the trial court did not allow a sufficiently full cross-examination of the witness regarding the failure to prosecute him.
    7. CROSS-EXAMINATION: Scope. The largest- possible scope should be given to cross-examination, left chiefly to the discretion of the trial court, and the Supreme Court cannot say that such discretion bas been abused when there is nothing in the record to show that the witness’s answers would have impeached him or benefited the defendant.
    8. -: -: -: Impeaching Witness: Threats. Where a State’s witness has already been thoroughly discredited, the Supreme Court will refuse to reverse the case because the trial court would not permit an attempt on cross-examination to show that his statement to the prosecuting attorney had been obtained by means of threats.
    9. CONSP.1RACY: Statements of Conspirators after Termination. Cross-examination of one conspirator concerning his actions in taking a co-conspirator home the next morning after the commission of the crime, did not violate the rule excluding statements in reference to the transaction made by a conspirator after the termination of the conspiracy.
    Appeal from Boone Circuit Court. — Hon. David H. Harris, Judge.
    Affirmed.

      W. H. BotJmell, 8. G. Major, and O. 8. Barton for appellant.
    (1) The trial court erred in- refusing to permit the attorneys for the defendant to fully cross-examine, the witnesses Noble Peacher and Eollie D. Kivett, the accomplices who testified for the State, and on whose testimony the State relied for a conviction. Wharton, Crim. Evidence (9 Ed.), sec. 444; Eapalje, Evidence, p. 416, sec. 252. (2) The court erred in giving instruction 2, on -the part of the State. The theory on which the State tried the case was that there was a conspiracy between the defendant, Everett Bobbitt, and Eollie D. Kivett, Noble Peacher, Eobert Goodwin, Joe Stewart, and J. E. Bobbitt, to set fire to the dwelling house of Franklin Smith. - That the defendant, Everett Bobbitt, Joe Stewart, Eollie D. Kivett and Noble Peacher, went to the house and actually participated in the burning or being there present did aid and assist the others. The theory of the State was that J. E. Bobbitt and Eobert Goodwin remained at home while the others were actually present. The evidence connecting this defendant with the conspiracy (Kivett’s and Peacher’s) is the same evidence that shows them present, aiding and assisting. (3) Instruction 3 should not have been given. If the jury in considering the case under the evidence concluded that Kivett and Peacher alone were guilty as the defendant contended, he, the defendant, should have been acquitted, and instruction 6, offered by the defendant and refused by the court, correctly presented that branch of the case. (4) Instruction 9, given by the court, on the defense of alibi, is not as full and complete as the defendant was entitled to. This was the defendant’s sole defense. He offered an instruction defining this defense and the only objection that can be urged against it is that it requires more of the defendant than it should. State v. Glass-cock, 232 Mo. 294. As stated in State v. Harris, 232 Mo. at 321, the defendant was entitled to an instruction on alibi that fully covered the proposition, just as full and complete an* instruction as he could properly have claimed had he requested it, and in case “an instruction offered by the defendant is refused because defective in form or phraseology, it then becomes the duty of the court to give a proper instruction covering the point.” “If the defendant requests it clearly the court must instruct in a proper case, and must fully'cover the point.” State-v. Kilgore, 70 Mo. 546; State v. Reed, 154 Mo. 129; State v. Bobbitt, 228^Mo. 252; Mullins v. People, 110 111. 42; State v. Taylor, 118 Mo. 153; People v. Tong-Ali-Sing, 64 Cal. 253; Shoemaker v. Territory, 4 Okla. 118. (5) The court should have instructed upon attempted arson. State v. Bobbitt, 228 Mo. 262. (6) The defense should have been permitted to show all the facts relating to Kivett’s turning State’s evidence. It was proper as.affecting his credibility. State v. Miller, 100 Mo. 606; State v. Piney, 137 Mo. 102. (7) There was reversible error in the trial court permitting the attorney for the State to cross-examine Robert Goodwin as to his acts after the commission of the offense. State v. Davis, 80 Mo. App. 230.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The court did not err in giving State’s instruction 2. State’s instruction 1 presented the case to the jury on the theory of the conspiracy having been formed to burn the house, and that appellant was present and actually set fire to the house, or was present, aiding and assisting the other co-conspirators to burn the house. Said instruction 2 presented the case to the jury on the theory that the conspiracy was entered into to burn the house by appellant and others, and that appellant and said Stewart went home and was not present when the house was set afire. The proof fully warranted the court in giving said instruction 2 and submitting this cause to the jury on both of said theories. In no way are instructions 1 and' 2 in conflict, nor could they in the least have confused the issue of appellant’s guilt before the jury. (2) The court did not err in giving State’s instruction 3. This instruction was given in the former trial as instruction 8. This court fully approved it as a correct declaration of law on that phase of the case. State v. Bobbitt, 228 Mo. 267. (3) Instruction 9 is full, fair and complete. It covers every phase of the law on alibi. State v. Glasscock, 232 Mo. 294; State v. Barton, 214 Mo. 322; State v. Cushenberry, 157 Mo. 168; State v. Bryant, 134 Mo. 252; State v. Batemen, 196 Mo. 39; State v. Jones, 153 Mo. 461; State v. Taylor, 134 Mo. 152; State v. Sanders, 106 Mo. 195. (4) It is further contended that the court erred in permitting counsel for the State to cross-examine Robert Goodwin as to certain of his acts after the commission of the offense and the .termination of the conspiracy. All of his evidence was brought out without objection, except as to the question, “Why did you come back home?” and his answer, “Because I had business at home and none away from home that I knew of at that time.” This answer could in no way have been prejudicial to appellant, and therefore it could not avail appellant as a ground for reversing the judgment of conviction in this cause. State v. Eretschmar, 232 Mo. 29.
   ROT, C.

On the night of March 18, 1907, fire was set to the house of Franklin Smith in Howard county, and Smith was shot and killed. The fire was extinguished without having done much damage to the building.

Information was filed against defendant and Joe Stewart, charging them with the offense of arson. A change of venue was taken to Boone county, where both were convicted of an attempt to commit arson, and on appeal this court reversed the judgment and remanded the cause. [State v. Bobbitt, 228 Mo. 252.]

There was a severance. Stewart was tried and acquitted, and the defendant on November 22, 1910, was convicted of arson in the first degree and sentenced to five years in the penitentiary, and has appealed.

At the time of the alleged offense Smith was living two miles and a half north of Boonsboro, on land belonging to J. E. (Enoch) Bobbitt, the father of defendant. There was then pending a suit for possession of the land, brought by Enoch Bobbitt against Smith. The elder Bobbitt was often under the influence of liquor and had often made threats against Smith, who is spoken of as an “old man.” He had nine children, seven of whom were at home on the fatal night, two sons and five daughters. In addition there were sleeping in the house the father and mother and Mr. Sartain, the constable, who had come to serve some notice with reference to the pending suit.

On the same night, just at the northern edge of Boonsboro, at the house of Robert Goodwin, a son-in-law of the elder Bobbitt, was another company. Good-. win’s family consisted of himself and wife and two little boys. That company had gathered, if we consider defendant’s evidence alone, under the following circumstances: Enoch Bobbitt lived at Goodwin’s. The defendant lived about a mile and a half north and a little east of Smith’s, and about three and a half miles from Goodwin’s. Joe Stewart was living with defendant, whose mother was at defendant’s house on the night of the killing. While defendant and Stewart, were at supper, the elder Bobbitt hallooed from the road in front of the house. Defendant and Stewart went to him. He was so drunk that he fell from his horse, but insisted on going to Goodwin’s, refusing to go into defendant’s house, saying that his wife was in there, and that he had business at Goockvin’s. According to defendant’s testimony, he and Stewart walked beside the father, who rode part of the time and walked part of the time, until they reached Goodwin’s, where the father lay on the floor.

Goodwin testified for defendant that he brought Rollie Kivett to his house that night from Franklin Junction, a distance of six or seven miles, because he wanted to see him about renting Kivett some land, about thirty acres, not cultivated and in the bottom with some brush on it. Kivett was in the employ of the railroad at the round house, and was of kin to defendant. The next morning Goodwin took Kivett to the house of the latter’s father, a distance of four or five miles. The land was not leased to Kivett. Shortly after the death of Smith, Kivett was arrested under an information charging him with the forgery of his father-in-law’s name sometime before to the amount of $4000, under which charge he has not been imprisoned or tried. Goodwin further testified that after he got to his home with Kivett, he went into Boonsboro, at Kivett’s request, and telephoned to Noble Peacher to come to his house. Peacher was about fifteen years old, and had lived at Enoch Bobbitt’s for nine years until he had recently gone to Clay Bobbitt’s, another son of Enoch.

Peacher reached Goodwin’s about, seven or eight o’clock. The defendant, Stewart, Peacher and Kivett played cards and drank some whiskey. Goodwin testified that defendant and Stewart left his house about ten o’clock that night, and that soon after they left, he showed Kivett and Peacher into the same room with Enoch Bobbitt, all sleeping in the same bed, and that they were there in bed when later on the telephone rang and some one said on the wire that Smith was killed.

The above facts as to why the persons were at Goodwin’s are established by the testimony for the defendant. The defendant’s brief concedes that the persons who killed Smith and set fire to his house went from Goodwin’s house to do the deed and asserts that those persons were Rollie Kivett and Noble Peacher.

Mrs. Smith, the widow, testified that it was about midnight when they went to bed. After they had been in bed not over fifteen minutes, she saw a light. She thought her son and Mr. Sartain had gone with lanterns to see about the horses. Then she saw a bigger light, and, jumping up, she cried, “The house is on fire!” Her husband started out and then turned back and got his pistol. Plis wife opened the door and passed out on the porch, and he passed her on the porch out on to the ground. She testified: “I was trying to knock the pole down off the house. There had been a handkerchief tied on the pole and it was saturated in coal oil, and a lot of waste thrown up on the roof, which was saturated in coal oil, and I was trying to knock it down, and he looked up over his shoulder and said, ‘Don’t knock it down,’' and just then he was shot and fell and riz up and said, ‘Oh! they have shot me.’ I saw the glimpse of the man who fired the last shot, I could not tell who it was. We found an old sack up there on the waste, and there was coal oil spilled on the floor where they had saturated the waste.

“Q. Did you see those after you had knocked the pole down or before? A. It was before, because we got the fire down after the last short was fired. Q. Did you see them on the ground after they had been knocked down? A. Yes, sir. Q. That was after the pole had been knocked down? A. I knocked the pole down myself and my son got a ladder and taken a bucket of water and put it on the fire and dashed the things off.”

On cross-examination: “At the time you knocked the pole down there was something on the pole burning, and something on the roof burning? A. Yes, sir, and it caught a little in the roof, but the waste and the sack was burning more than the roof. The roof was burning. Q. You didn’t set the house afire by knocking the pole down? A. No, sir, it is reasonable that I didn’t set the house afire. They got up there and put the water on and it didn’t burn after that. They dashed the water on and that knocked the sack off. There was a place burned in the roof. I could not say whether the shingles were burned into.”

Yaughn Smith, on cross-examination by defendant, said: “Q. You don’t know of your own knowledge who set this house hfire? A. No, sir. Q. Was the roof burned? A. It was afire and I put it out. Q. Did you look at it the next morning? A. Yes, sir. Q. State whether the shingles were charred? A. Yes, sir. Q. Was there a hole burned in the roof? A. Not through, no, sir. Q. This fire, as I understand it, was put on the porch about' half-way up to the L, was it not, close to the edge? Close to the back edge of the porch? A. Yes, sir.”

Rollie -Kivett testified: “We took a pole and tied some waste on it and saturated it with coal oil. And then we had a meal sack and saturated that with coal oil and one hung the sack on the pole and laid it up on the roof, and Joe Stewart struck a match to the waste with the oil on it and laid it over on the sack, and we went out of the yard then. The sack was found to be marked with the letter B.”

The State’s evidence tended to show that the tracks of four men were found going from the direction of Smith’s house towards Boonsboro until they got on to the hill near the rye field, where they divided two and two, one pair going on towards Groodwin’s and the other pair was not followed.

Rollie Kivett testified that on February 16, 1907, he talked with defendant, at Franklin Junction, when defendant told him that his father was in a law suit with Smith and wanted him (defendant) to burn Smith’s house, and would give defendant twenty dollars to burn it, and that' defendant would give witness half of it to go with him, and when defendant started to leave said he would call the liveryman, Mr. Black, and tell him that the trade was all right and for witness to come ahead and he thought the old man would give witness twenty dollars. Mr. Black testified that defendant did call him over the telephone and told him to tell Kivett the trade was all right, about a week and a half before the killing. Kivett further testified that Enoch Bobbitt at various times insisted that the witness come and help him burn Smith’s house, and that on March 3 he tried to get witness to come and offered him twenty dollars, and part of the insurance if he got any. That-on March, 18, Enoch Bobbitt, the defendant being present, at Boonsboro, wanted witness to go with Everett that night to burn the house, and said to witness, “I am going to send for you and if you don’t come I am going to prosecute you for forgery. ’ ’ That later that day Goodwin pame to his house and said to him that old man Bobbitt had sent after witness to help Everett Bobbitt, Joe Stewart and Noble Peacher burn Smith’s house. That Goodwin said the old man would give witness fifty dollars, and if witness did not come he would be prosecuted. That Goodwin, to induce witness’s wife to consent for him to go, told her that he wanted witness to make a land deal for him, and he would give witness fifty dollars and the wife a silk dress. That they got to Goodwin’s house about eight o’clock, they played cards, drank some whiskey, until between eleven and twelve o’clock, when witness, defendant, Peacher and Stewart went to Smith’s, set fire to the house and killed him, then ran away to the southwest near the rye field where they divided as above stated. That witness took the waste with him from Franklin Junction.

Noble Peacher testified that he had lived with. Enoch Bobbitt for about nine years and until about two weeks before the killing, when he had gone to Clay Bobbitt’s. He was in Boonsboro that afternoon, and got some coal oil and left it at Goodwin’s, then took Mrs. Enoch Bobbitt up to Everett Bobbitt’s, then went back to Clay Bobbitt’s, and thence to Goodwin’s. That they played cards at Goodwin’s, and talked about burning or scaring Smith out, the defendant, Stewart, Kivett, Goodwin and' Enoch Bobbitt being present. About ten or eleven o ’clock they went out on the porch, got the coal oil and a sack and waste, and Kivett went to the barn and got some whiskey, and that Stewart, Kivett, the witness and defendant left Goodwin’s and went over to Smith’s house to burn it. On the way over they cut a pole; witness was sent south of the garden, which was south of the house, to attract the dog. After the fire was started and Smith killed, they ran back to where they had cut the pole near the rye field and separated, witness and Kivett going back to Goodwin’s and to bed, and the defendant and Stewart going another way. Peacher pleaded guilty to arson in connection with this offense and was sent to the reform school and was out by good behavior at the time of trial.

On the trial, the defendant, Goodwin and Stewart all denied any connection with the crime. Defendant testified that he and Stewart got home about fifteen minutes after eleven and went to bed together upstairs; and that about two o’clock his mother or wife called him and he dressed and went downstairs to the telephone and was told.that Smith had been killed, and defendant’s mother asked him to have the telephone call up Goodwin’s to see if her husband was there.

There was much evidence as to the good character of the defendant, and the bad character of Rollie Kivett and Peacher. Several witnesses for the State testified that there were 'tracks made by four people going from Smith’s that night. Sheriff Gibson, who had been such for five or six years before the offense, testified that he got to Smith’s about eight o’clock the next morning and found two tracks in the ash pile, and'that he followed those tracks “down in the horse road and then two tracks joined them and they crossed the branch and up ike hill and then two tracks went across the field,” and that two tracks were lost in the leaves on top of the hill. Several witnesses for defendant testified that there were only two tracks going from the Smith house.

The appellant strongly insists that he was not permitted by the trial court to fully cross-examine some of the witnesses for the State. We will state the facts as to such matters in the course of .our opinion.

The instructions so far as necessary to be stated were as follows:

“2. The court instructs the jury that if you believe from the evidence that the defendant, Everett Bobbitt, at Howard county, Missouri, entered into a conspiracy, agreement and common design with Rollie D. Kivett, Noble Peacher, Robert Goodwin, Joe Stewart and J. E. Bobbitt, or any of them, to set fire to the dwelling house of Franklin Smith, and that thereafter one of .said persons who had entered into such conspiracy and agreement, did, in prosecution thereof and according to said common design and while acting in concert with the defendant, Everett Bobbitt, at any time within three years prior to the 30th day of Jannary, 1908, unlawfully, maliciously and feloniously set fire to the dwelling house of said Franklin Smith, in Howard county, Missouri, and that there was in said dwelling house at the time a human being, although you may believe that the defendant was not present at the time said house was set fire to, you should find the defendant guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of not less than five years. ’ ’

“3. The court instructs the jury that the only question for you to pass upon in this case is the guilt or innocence of the defendant, Everett Bobbitt, and you should consider the guilt of Rollie D. Kivett and Noble Peacher only as affecting their .credibility as witnesses.”

“9. The court instructs the jury that if from all the evidence you believe the defendant was elsewhere than the place of the alleged burning at the time thereof and you have a reasonable doubt of the presence of the defendant at the time and place of said alleged burning, yon should acquit him unless you further believe from all the evidence beyond a reasonable doubt that the defendant was a party to a conspiracy to burn the dwelling house of Franklin Smith and guilty under the other instructions of the court.”

“11. The court instructs the jury that the defendant is a competent witness in his own behalf and his testimony is to be weighed by the same rules that govern the testimony of other witnesses, but in determining* the weight to be given his testimony you may take ilito consideration the fact that he is the defendant in the case and his interest in the result of the trial.”

The defendant asked, and the court refused, the following instructions:

“3. ■ The court instructs the jury that the State has submitted this case on two theories. The first being that the defendant was actually present and participated in the crime. To this theory the defendant interposes the defense known in .law as an alibi, that is, that the defendant was at another place at the time of the commission of the crime, and the court instructs the jury, that such defense is as proper and as legitimate, if proved, as any other, and all the evidence bearing on that point should be carefully considered by the jury; and if in view of all the evidence, the jury have a reasonable doubt as to whether the defendant was in some other place when the crime was .committed, they should give the defendant the benefit of the doubt and acquit him.”

“6. The court instructs the jury that if after considering all the evidence in this case you entertain a reasonable doubt as to whether the offense charged was committed by the defendant or some other person or persons in no way connected with defendant you should acquit the defendant.

“And you are further instructed, that it is the law that although it may be positively proved that one of the two or more persons committed a crime, yet if there is any reasonable doubt as to which is the guilty party, this defendant must be acquitted.”

I. Instruction numbered 2 for the State.is a clear statement of the law as applicable to the evidence.

II. Instruction numbered 3 is substantially the same as one given on the formér trial which was held not erroneous.

III. Instruction numbered 9 given for the State on the subject of alibi is challenged as not being “as full and complete as defendant was entitled to,” and defendant insists that his instruction numbered 3 should have been given. The refused instruction left entirely out of view the question as to whether defendant was in a conspiracy to burn Smith’s house, and was properly refused on that ground, as clearly shows in the former opinion in the case. The first part of instruction.9 is not happily expressed, but we feel sure that it did not mislead the jury, and no complaint is made in defendant’s brief of that part of the instruction.

IV. Appellant contends that there should have been given an instruction on the subject of attempt to commit arson. We have fully set out the evidence bearing on the question at the last trial, and a comparison of the evidence with the evidence of the former trial will show that, whereas at the first trial the evidence left it uncertain whether Mrs. Smith, in knocking down the pole, caused the burning sack and waste to fall on the roof from the pole, the evidence at the last trial is clear to the effect that the burning sack was on the roof before the attempt to knock the pole down.

Section 4895, Revised Statutes 1909, provides: “No person shall be convicted of an assault with an intent to commit a crime, or any other attempt to commit any offense, when it shall appear that the crime intended dr the offense attempted was perpetrated by such person at the time of such assault, or in pursuance of such attempt,”

In State v. Bell, 194 Mo. l. c. 267, it was held: “Giving full credit to the testimony for the State, it seems perfectly plain that the defendant was guilty of rape, hut he was neither tried nor convicted of that offense, but merely of an attempt to commit, which the statute positively forbids.” To the same effect are State v. White, 35 Mo. 500; State v. Lacey, 111 Mo. 513, and State v. Scott, 172 Mo. 536.

V. Rollie Kivett testified that on March 18, Enoch Bobbitt threatened that if the witness did not help burn the house he would be prosecuted for forgery; and that when he was arrested, after the death of Smith, the arrest was not for murder or arson, but for forgery. That when arrested he was taken to the office of Mr. Walker, the prosecuting attorney, where witness was told that he was charged with forgery, and asked by Mr. Walker if he did not want to make a statement about the Smith matter. Witness told Mr. Walker that he was not in the Smith matter, and knew nothing about it. Mr. Walker said to Kivett that he thought he was in it and told Kivett to think it over, and that if he (Kivett) wanted to make a statement, he (Walker) would come. That witness told the sheriff, and that Mr. Walker came, and witness made his statement, and that the forgery case had never been called for trial. That witness was out under bond. Complaint is made that the trial court did not allow a full cross-examination of Kivett as to the pendency of the forgery case against him, and the failure to prosecute him for murder or arson or forgery.

We find that the evidence fully showed the facts above stated. We find that the bill of exceptions nowhere shows that any attempt was made to prove that Kivett was promised anything further than the above facts tend to show. The cross-examination was long and contains many questions which were proper and which, were excluded because they had already been answered. So in the cross-examination of Kivett and Peacher as to their various contradictory statements in the various trials growing out of the matter. Taking the examinations as a whole, they fully covered the ground and clearly showed glaring contradictions in the testimony of those witnesses, and the jury evidently would not have convicted on their evidence had it not been, in the essential facts, corroborated so strongly by the undisputed facts in the case.

Those undisputed facts are as follows: Defendant’s mother was a Kivett and related to the witness Eollie Kivett; Peacher had grown up in the house of defendant’s father, and defendant must have known him as few could have known him. Defendant, with Stewart, had taken his father, who was so drunk as to fall off his horse, from defendant’s own home where defendant’s mother was, a distance of three and a half miles, to Eobert Goodwin’s, because the father had business there. When they got to Goodwin’s, they met Kivett and Peacher. Defendant’s brother-in-law, Goodwin, had gone five or six miles to Franklin Junction to bring Kivett to his house on a land deal which never took place and existed only in pretense. Goodwin also went into Boonsboro and telephoned Peacher to come to his house. Goodwin also had every chance to know all about Kivett and Peacher. All held themselves on a level that night in a game of cards, and in the indulgence in liquor which is so dangerous when men are entering upon an enterprise the end of which cannot be clearly foreseen. Enoch Bobbitt’s wife did not sleep with him that night. She was at defendant’s. Her place in her husband’s bed was taken'by Kivett and Peacher. During the night those two were at Smith’s house engaged in the crime there committed, and later on were again in Enoch Bobbitt’s bed, and their going and coming had not been noted by Goodwin who had brought them to his house. Enoch Bobbitt was in a law suit against Smith. He had made numerous and dire threats against him. Neither Kivett nor Peacher, bad as they might be, was shown to have anything against Smith. There was strong evidence, including that of the experienced sheriff of the county, that there were tracks of four people going away from Smith’s house that night.

VI. The witness Peacher had pleaded guilty to the charge of arson in connection with the burning of Smith’s house and had been paroled from the Reform School, and later discharged from his parole. He was asked on cross-examination as follows: “How long was that [his discharge] after the trouble you had at the Whitehall Christmas tree? State’s counsel: We object. The objection was sustained. When were you dismissed from the Reform School? A. July 18, .1908. Q. The following Christmas was you at a party at Whitehall school house? A. I was. Q. Was there a racket there? By State’s counsel: We object to that as improper. By defendant’s counsel: My contention is that this is cross-examination of a witness and this is an important State’s witness and I have a right to ask him anything that would affect his credibility. The rule in this State gives a great deal of latitude. By the court: Any conduct on the part of the witness that would indicate that he is so degraded that it would affect his truthfulness, you could ask him. You might ask him something that would affect his credibility. I don’t know what you are bringing out. By State’s counsel: You can prove a general reputation for immorality and so forth, but not a specific act. By the court: Objection sustained.”

We will not examine the propriety of the above rulings. The affair at the Whitehall school house was spoken of by defendant’s counsel as a “racket.” No further showing of its character appears. Peacher was already known as a participant in the arson and murder. He bad pleaded guilty and bad been in tbe Reform School.

No question was asked or statement made wbicb directly showed or implied that tbe witness bad done anything at tbe scboolbouse that would tend to impeach his credibility. What was the “trouble” spoken of in-one question and the “racket” spoken of in another? No question asked of tbe witness indicated whether be was an innocent or guilty participant in tbe trouble. We are aware that on cross-examination counsel is not required to state what be expects to prove by the witness. That would too often defeat the purposes of cross-examination. The fact sought to be dragged from tbe witness in this case was not a concealed one known only to tbe witness. A “racket” at a Christmas tree at tbe scboolhouse was likely to be known to many, and defendant’s counsel knew enough of them to indicate to him tbe degree of tbe witness’s culpability therein, yet he has brought this case here on appeal without a word in the record to indicate that the answer to the questions asked would have in any way benefited the defendant or impeached the witness. It would have been easy for counsel to have asked a question wbicb would have implied such an answer as would discredit tbe witness. Yet be did not do so. We cannot reverse this case and send it back for tbe development of a fact that has not even impliedly been declared to exist.

As said by Wigmore on Evidence, sec. 1368, “Tbe process of cross-examination is invaluable.” In section 1367, he says, “It is beyond any doubt tbe greatest legal engine ever invented for tbe discovery of truth.” Also in section 1368, “Cross-examination then . . . has for its first utility the extraction of the remaining qualifying circumstances, if any, known to the witness, but hitherto undisclosed by him. Tbe facts which diminish and impeach tbe personal trust■worthiness or credit of the witness will also, in every likelihood, have remained undisclosed on the direct examination. These it is the further function of the opponent’s examination to extract.”

It is said that the “largest possible scope” should be given to cross-examination, that scope being left chiefly to the discretion of the trial court. We cannot say that such discretion has been abused in this case.

The witness Peacher on cross-examination testified as follows:

“Q. Did anybody talk to you about your testimony, what it was to be? A. I talked to Mr. Prosser and Mr. Walker.

“Q. Were they both in the room? A. Yes, sir.

“Q. Did Prosser get mad at you? A. I don’t know that he did.

“Q. Did he abuse you? A. I don’t know that he did.

“Q. Did he threaten you?

“By State’s counsel: We object.” Which objection was sustained.

We cannot understand why that objection was made. It should have been overruled. But we are not prepared to reverse the case on that ground. The witness was already thoroughly discredited with the jury. It was as hard to impeach him further as it was to “gild refined gold.”

The only thing which gave credit to the testimony ©f either Kivett or Peacher was the thorough corroboration of the substantial and necessary facts testified to by them by the unquestioned facts in the case.

The point made that threats by Enoch Bobbitt were shown in' evidence prior to the foundation of the alleged conspiracy is not borne out by the record. The cross-examination of Goodwin did not violate the rule excluding statements by a co-conspirator in reference to the transaction after the termination of the cohspiracy. He was simply cross-examined as to his taking Kivett home the next morning.

There have been two convictions of this defendant of this charge. We do not see how a different result could be reached on another trial. We do not think that reversible error has been committed, and the judgment is affirmed. Blair, G., having been of counsel, not sitting.

PER CURIAM. — The foregoing opinion of Eoy,. C., is adopted as the opinion of the eonrt.

All the judges concur.


author: BROWN, J. WOODSON, J.

text:
    THE STATE ex rel. BUCHANAN COUNTY, Appellant, v. JOHN F. IMEL, Judge of Probate Court.
    In Banc,
    April 23, 1912.
    1. COUNTY OFFICERS: Probate Judges: Constitutional Provision. Section 12 of article 9 of the Constitution, declaring that “the General Assembly shall, by law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose, may classify the counties by population,” does not include probate judges; and for two reasons': first, the words “county officers” in a restricted and precise sense mean the officers by whom the county performs its usual political functions of government, and a probate court does not perform any governmental functions, but its functions are judicial and are to administer the laws pertaining to the estates of deceased persons, minors and persons of unsound mind; and, second, the section is found in the article of the Constitution entitled “Counties, Cities and Towns,” and relates to those things only, and nothing is found therein referring to probate judges, their duties or compensation; and applying the rule that the meaning of words in a statute or constitution is to be ascertained by an examination of its context, it is apparent that the words “county ■ officers” were not intended to include probate judges. [Overruling Henderson v. Koenig, 168 Mo. 356.]

      Held, by WOODSON, X, dissenting, (1) that a probate judge is a part of the government, and to declare him not to be a county officer is in effect to make him a State officer, and in effect also to hold that sheriffs, circuit clerks and justices of the peace are not county officers; and (2) that it has been the universal opinion of the bench and bar for almost a century that probate judges were county officers.

      2. -: -: Fees and Compensation: Constitutional Statute: Sec. 10695, R. S. 1909, Section 10695, Revised Statutes 1909, requiring each probate judge to keep a true and correct account of all fees annually earned and collected by him and' that “whenever, after deducting all' reasonable and necessary expenses for clerk hire, the amount of fees collected in any one calendar year by or for any one probate judge, during his term of office and irrespective of the accrual of such fees, shall exceed a sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in such county, then it shall be the duty of such probate judge to pay such excess less ten per cent thereof” into the treasury of the county, for the benefit of the school fund, is constitutional. [WOODSON and GRAVES, JX, dissenting.] •
    3. -- — : -: -: -: -: Title: To Repeal Existing Section. The title of a bill which is “An Act to repeal section 3240, chapter 27, article 1, of the Revised Statutes of 1899, relating to fees; and to enact a new section in lieu thereof, to be known as section 3240,” complies with section 28 of article ' 4 of the Constitution, requiring the subject of each bill to be clearly expressed in its title. The title to a bill which designates and repeals a certain section of the Revised Statutes is ample notice to members of the General Assembly that the new section enacted in lieu thereof would deal with the same subject; besides, the said title contained a recital that the new section would relate to fees.
    4. -: -: -: -: -: -: Salaries and Fees. The subject of salaries is germane to the subject of feesi and it is entirely competent for the General Assembly under the title of a bill relating to the fees of probate judges to provide for paying them a salary out of their fees and requiring that part of their fees in excess of an ascertainable amount to be paid into the county treasury to the credit of the school fund. [WOODSON,,J., dissenting.]
    5.---: -: -: -: -: Estoppel: Accepting Office and Collecting Fees Prescribed by Statute: Excess. A probate judge who accepts an office under an existing statute requiring that the excess of the fees collected by him shall be paid into the public treasury and who assumes to act under the law in collecting fees, is estopped to dispute the validity of that part of the same law which requires him to pay the excess into the county treasury. He cannot treat as valid that part of the law under' which the money was collected and dispute the validity of that part of the same law which prescribes how the fees collected shall be disbursed.

      Held, by WOODSON, X, dissenting, (1) that the right of the probate judge to fees was created by one law, and the provision requiring him to pay into the county treasury the excess of fees above an ascertainable amount was a subsequent enactment, and the two are separable, and when a legal right is created by a valid law that right cannot be taken away by an unconstitutional act; (2) that the rule of estoppel applies only when the act is void in toto, in which case the officer must repudiate it in toto, and cannot be heard to claim the benefits of the void act while refusing to submit to the burdens imposed by it; (3) there was no agreement by respondent to pay over the excess of fees imposed by the void act, and no such agreement can be implied from his acceptance of the office and the filing of his bond; and (4) the invalid part of section 10695 can be separated from the rest and be held to be void, and the balance relating to the fees which the probate judge may collect for his services be sustained.
    6. -: -:--: -: Sale of Justice: Not Pleaded. A contention that the law which prescribes fees as the compensation for the services of probate judges and requires them to pay the excess above an ascertainable amount into the county treasury, amounts to “a sale of justice” and is therefore in conflict with that part of the Constitution which declares that justice shall be administered “without sale, denial or delay,” cannot be considered unless the issue is made a part of the pleadings.

      Held, by WOODSON, J., dissenting, that the Legislature has no right or power to authorize the taxation and collection of unreasonable or excessive court fees, and a statute which authorizes „such taxation is unconstitutional and void, and amounts to a sale of justice; and a statute which authorizes the imposition of certain fees as compensation for services of the probate judge, allows him to retain a certain portion thereof and requires him to pay the excess into the public treasury, being in effect a legislative authorization to charge more for his services than they are worth, is such a statute, and is void as a sale of justice.
    Appeal from Buchanan Circuit Court. — Hon. L. J. Eastin, Judge.
    Reversed {with directions).

      G. C. Ferrell for appellant. -
    (1) All enactments of the Legislature are presumed to he constitutional until the contrary is made clearly to appear. For this reason the burden rests upon the respondent to point out and make clear to this court that said act is violative of the Constitution. State ex rel. v. Williams, 232 Mo. 2- State ex reí v. Mason, 150 Mo. 49; State ex rel. v. Switzler, 143 Mo. 317. (2) If said law of 1905 is unconstitutional, respondent waived his right to take advantage of it by giving á bond under its provisions, thereby declaring his intention to accept it. When he gave such bond, he agreed with the county to accept said law, as the rule by which he and the county should determine their respective rights. This suit is upon that agreement, namely, upon respondent’s bond. There are no reasons of public policy demanding this law to be declared unconstitutional, but an individual is asking it to further his property interests. Henderson v. Koenig, 192 Mo. 690; Stiepel v. Life Assn., 55 Mo. App. 233; State ex rel. v. Messerly, 198 Mo. 351; Merrill v. St. Louis, 83 Mo. 251; Williams v. Railroad, 153 Mo. 519; Bishop on Contracts (1888), sec. 792.

      George P. Webster, G. G. Grow and Vinton Pike for respondent.
    (1) The Act of 1905, now section 10695, violates section 12 of article 9 of the Constitution, (a) The only classification authorized is one based upon the population of counties, while the act itself classifies probate judges, or the compensation to be received by them, on other conditions. The maxim expressiounius est exclusio alterius is applicable to constitutions as well as to statutes. Cooley, Const. Lim. (6 Ed.), pp. 78 and 93; Page v. Allen, 58 Pa. St. 338; People v. Draper, 15 N. T. 544; Railroad v. Railroad, 130 U. S. 25; Henderson v. Koenig, 168 Mo. 369; Ex parte Arnold, 128 Mo. 264. 'The permissive .classification according to population of counties was, therefore, a specific prohibition against any other classification. A probate judge is a county officer. Henderson v. Koenig, 168 Mo. 356. (b) The constitutional command is that the compensation shall be regulated by a law uniform in its operation, but this act is not uniform in its operation because it does not work out uniformly in the several counties, owing to the differing amounts received as salaries by circuit judges, and the varying amount of fees earned in the several probate courts. It is subject to constant fluctuation, because every legislature and every county court can change the salary of a circuit judge. The word “operation,” as used in this portion of the Constitution means “working out.” Crabb, Eng. Syn., p. 35'; March, Thesaurus Die., Title “Action-Effect;” Century Die., Title “Operation;” Anderson’s Law Die., p. 734; G-eebrick v. State, 5 Iowa, 496; Little Rock v. Parrish, 36 Ark. 166. The effect of the statute must be uniform upon the subject-matter. It cannot operate upon the main subjects in one part of the State differently than it operates upon the same subjects in other parts of the State. The law must operate uniformly upon the subject-matter in every part of the State, and only when it does that will it comply with this provision of the Constitution. State v. Nelson, 52 Oh. St. 88; Railroad v. Barnes, 2 N. D. 310'; State ex rel. v. Herrmann, 75 Mo. 340; State v. Julow, 129 Mo. 163. (2) The Act of 1905 is unconstitutional and void for failure to conform to thé requirements of section 28 of article 4 of the Constitution. The title of the Act of 1905 was simply “An Act to repeal section 3240, chapter 27, article 1, of the Revised Statutes of 1899', and to enact a new section in lieu thereof, to be known as section 3240'. ” But the act itself simply reenacted old section 32401, which provided the scale of fees to be charged and concerned only the probate judge and the persons having business in his court, and then added to it a proviso regulating the disposition of the fees diminishing the judge’s compensation, and creating a revenue for the school fund of the counties, without any mention of these purposes in the title. For this reason the act is void. Williams v. Railroad, 233 Mo. 666; Mobile v. Railroad, 124 Ala. 132; People v. Curry, 130 Cal. 82; Pratt v. Brown, 135 Cal. 649; Crowther v. Ins. Co., 85 Fed. 41; Equitable Co. v. Donohoe, 49 Atl. 372; Henderson Co. v. Alves, 122 Ky. 46; State v. S. R. Co., 106 La. 553; Stiefel v. May Ins., 61 Md. 144; Bank v. Auditor, 123 Mich. 511; Railroad v. Sprague, 69 Neb. 48; State v. Sullivan, 73 Minn. 378; Railroad v. Smythe, 103 Fed. 376; State v. Railroad, 115 Ala, 250; Hann v. Bedell, 67 N. J. L. 148. No member of the General Assembly reading this title would be struck with the idea that the new act was, in addition to the scope of the old act, to change the disposition of the fees charged, to limit the compensation of the judge and to provide a revenue for the school fund.
   BROWN, J.

The object of this suit is to determine the constitutionality of that part of section 10695, Revised Statutes 1909, which provides that each probate judge in this State shall keep a true and correct account of all fees annually earned and collected by him, and “that whenever, after deducting all reasonable and necessary expenses for clerk hire, the amount of fees collected in any one calendar year by or for any one probate judge in. any county in this State, during his term of office, and irrespective of the date of accrual of such fees, shall exceed a sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in such county, then it shall be the duty of such probate judge to pay such excess less ten per cent thereof, within thirty days after the expiration of such year, into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county.”

The plaintiff in his petition alleges that defendant, while acting as probate judge of Buchanan county during the year 1907, collected fees aggregating the sum of $5557.68; that after deducting from the fees so collected a salary equal to the salary of the circuit judge of Buchanan county and all necessary clerk hire and also ten per cent of the remainder of said fees, there was due from said defendant to Buchanan county a balance of $926.18, for which judgment was prayed, with six per cent interest from January 1, 1908.

Plaintiff also alleges that defendant as such probate judge, during the year 1908, collected fees aggregating the sum of $6675.30; that after deducting therefrom a-salary equal to the salary of the circuit judge of Buchanan county, and all necessary clerk hire, and also ten per cent of the remainder of said fees, there was due to Buchanan county a balance of $1500, for which plaintiff prayed judgment, with interest at six per cent from January 1,1909.

The defendant admitted the collection of fees in the amount and manner charged in plaintiff’s petition and deposited in court the sum of $2426.18, being the amount claimed by the plaintiff; and pleaded that said section 10695, supra, in so far as it requires defendant to pay a part of his fees into the county treasury, is unconstitutional and void, and prayed the court to determine the constitutionality of said section, and order the fees so deposited, returned to him.

The court below gave judgment for the defendant on the ground that so much of section 10695', Eevised Statutes 1909, as requires probate judges to pay over to county treasurers a part of the fees received by them, is in conflict with section 12 of article 9 of our State Constitution, which reads as follows: “The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose, may classify the counties by population.”

In the ease of Henderson v. Koenig, 168 Mo. 356, this court held that the words “county officers,” as used in the foregoing section of the Constitution, include probate judges; and in that case we also held that a statute which attempted to place probate judges in cities of 300,000 inhabitants upon a salary, and required their clerks to collect the fees earned by such judges and pay the same into the city treasury, was unconstitutional.

Almost the same issue arises again in this case; and it becomes necessary for us to reexamine the contraction placed upon said section 12 of article 9' of the Constitution in the Henderson case, supra, and determine whether or not in this case we will follow the rules of law announced in that case.

The rule announced in the Henderson case depends for its correctness almost entirely upon the' proper construction to be placed upon the words “county officers,” as used in the aforesaid section of our organic law.

The words “county officers” have two well defined meanings. In their most general sense, they apply to officers whose territorial jurisdiction is coextensive with the county for which they are elected or appointed. In a more precise and restricted sense, those words mean officers “by whom the county performs its usual political functions, its function of government.” [Sheboygan County v. Parker, 70 U. S. 93, l. c. 96.]

The Constitution of Tennessee contains a provision. that “no county office created by the Legislature shall be filled otherwise than by the people or by the county court.” In State ex rel. v. Glenn, 54 Tenn. (7 Heisk.) 489, it was held that the above quoted clause of the Constitution did not include county judges because they are judicial officers. That as county judges in Tennessee possess jurisdiction to try certain classes of civil actions between individuals, they did not come under the classification of county officers, and therefore the Governor was authorized to fill a vacancy in that office by appointment.

“The established rules of construction applicable to statutes also apply to the construction of Constitutions.” [8 Cyc. 729.] One of the established rules for construing statutes is to examine closely the context of the act where the words to be construed occur, and thereby ascertain what meaning they were intended to convey. [Riggs v. Railroad 120 Mo. App. 335, l. c. 340; State v. Snyder, 182 Mo. 462, l. c. 500.]

Applying this rule in the case at bar, we observe that said section 12 of article 91 of our Missouri Constitution, declaring that all laws regulating the fees of “county officers” shall be uniform in their operation, is not found in that article of the Constitution which creates and prescribes the duties and jurisdiction of probate judges; but is part of article*9', entitled “Counties, Cities and Towns.”

In this last named article (9), nothing is found specifically referring to probate judges, their duties or compensation; but instead, that article treats of the organization and change of boundaries of counties, cities and townships (sections 1 to 9), the offices of sheriff and coroner (sections 10 and 11), a limitation on the fees of executive and ministerial officers of counties and municipalities (section 13), the creation of new county, township and municipal officers by the General Assembly (section 14), and other provisions for the government and consolidation and enlargement of cities. In this article we would not expect to find any provision respecting or affecting the judiciary of the State.

Judges of the probate court are not charged with the performance of any governmental functions of the counties for which they are elected; in fact, some of them do not have jurisdiction coextensive with the counties where their offices are held. Their functions are to administer the laws' pertaining to estates of deceased persons, minors and persons of unsound mind.

From the context of said section 12 of article 9, supra, it will be seen that there is very little if any better reason for classifying probate judges as “county officers” than for so designating judges of the circuit court when their circuits are composed of a single county.

After a careful review of said section 12 of article 9 of the Constitution of Missouri, - we' are fully convinced that it was not intended to embrace or include judges of probate courts; and that in holding that it does embrace those officers, the case of Henderson v. Koenig, supra, is erroneous, and the same is therefore overruled.

The second contention of defendant is that the title of the bill under which section 10695 was enacted did not conform to section 28 of article 4 of our State Constitution, requiring the subject of each bill to be clearly expressed in its title.

The title to said bill is as follows: “An Act to repeal section 3240, chapter 27, article 1, of the Revised Statutes of 18991, relating to fees; and to enact a new section in lieu thereof, to be known as section 3240.” Defendant cites and relies upon: State v. Great Western Tea and Coffee Co., 171 Mo. 634; Williams v. Railroad, 233 Mo. 666; State v. Parker D. Co., 237 Mo. 103; Mobile v. Railroad, 124 Ala. 132; Pratt v. Browne, 135 Cal. 649; People v. Curry, 130 Cal. 82; Crowther v. Fid. Ins., etc. Co., 85 Fed. 41; Equitable G. & T. Co. v. Donahoe, 3 Penn. (Del.) 191, 49 Atl. 372; Henderson B. Co. v. Alves, 122 Ky: 46; State v. Am. S. R. Co., 106 La. 553; Steifel v. Maryland Inst., 61 Md. 144; Citizens Sav. Bank v. Auditor, 123 Mich. 511; Union Pacific Ry. Co. v. Sprague, 69 Neb. 48; State v. Sullivan, 73 Minn. 378; C. B. &. Q. Ry. Co. v. Smyth, 103 Fed. 376; State v. Railroad, 115 Ala. 250; Hann v. Bedell, 67 N. J. L. 148.

The cases cited do not sustain defendant’s contention.

It is scarcely necessary for us to cite authorities on the point that the title to a hill which designates and repeals section 3240, Revised Statutes 1899, was ample notice to the members of the General Assembly that the new section enacted in lieu of section 3240, supra, would deal with the same subject contained in the repealed section, to-wit, fees and compensation of probate judges; and no reasonable legislator could have been misled by said title into believing that the new section would contain only the same provisions as the repealed section.

When a section is repealed and re-enacted, there is invariably some change made in the old law. The title to the bill under consideration, by referring to the old section fixing fees of probate judges and containing also a further recital that the new law related to fees, was broad enough to give notice of any change to section 3240 (now Sec. 10695, R. S. 1909) which the Legislature saw fit to make, so long as said amendment related in any manner to the fixing, collection or distribution of fees of probate judges. [State ex rel. v. County Court, 128 Mo. 427; State ex rel. v. Heege, 135 Mo. 112.]

Salaries are a form of compensation prescribed for paying public officers and others for their services. It takes the place of and produces very much the same result as paying fees to public officers for their services. We therefore hold that the subject of salaries is germane to the subject of fees, and it was entirely competent for the General Assembly under the title to the bill under consideration to provide for paying probate judges a salary out of their fees and requiring part of their fees to be paid into the public treasury to the credit of the school fund. [State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; Ferguson v. Gentry, 206 Mo. 189; State ex rel. v. Vandiver, 222 Mo. 206; State v. Bixman, 162 Mo. 1.]

In the Bixman case, supra, the validity of the beer inspection law was assailed on the ground that its title did not indicate that it was intended to be a revenue measure for the purpose of replenishing the State Treasury; and in fact, the title of the bill did not indicate how the fees of the beer inspector were to be disposed of; neither did the title of that bill refer to the fact that the beer inspector was to receive any fees whatever; yet this court, speaking through Gantt, J., held that the fact that the title of the bill did not specify that the inspector’s fees were to be paid into the public treasury, did not vitiate that part of the law which required such payment.

That the title of the bill which defendant assails is sufficient to support all the provisions of said section 10695 is too clear to justify us in citing additional authorities.

Plaintiff asserts that defendant is estopped from denying the constitutionality of any part of the law under which the fees in controversy were collected, for the reason that he assumed to act under the law in collecting the fees, and cannot be allowed to treat that part of the law as valid under which the money was collected and dispute the validity of another part of the samé section which prescribes how the fees collected shall be disbursed.

A very similar issue arose in the State of California under a law which provides that the “ Commissioner of Immigration” shall collect fees for services in the inspection of immigrants, and after deducting his salary from such fees, pay the remainder thereof into the public treasury for the support of a hospital. After collecting a large amount of fees, the Commissioner of Immigration refused to pay any part of them into the treasury, claiming that as the law under which they were collected was in conflict with the Federal statutes, he could not he compelled to make such payment.' In construing that law, the Supreme Court of California, in the case of People v. Bunker, 70 Cal. 214, said: “The defendant having assumed to act under a statute of this State, and having collected moneys according to the letter of that statute, cannot be heard to say that the statute was in conflict with the Constitution of the United States . . . and that he was not bound to pay them over to the proper officer. ’ ’

We think the foregoing is a correct statement of a sound rule of estoppel. The defendant in the case at bar having collected the fees under section 10695, Revised Statutes 1909, is estopped from asserting that any part of said section is invalid. The law under which defendant collected the money in controversy was in force when he accepted the office of probate judge of Buchanan county. By voluntarily accepting that office and collecting the fees which the law prescribed for his services, he waived the right to assail the constitutionality of that law. This doctrine also finds support in the case of State v. Speed, 183 Mo. 186, l. c. 200, and Board of Education v. Kenan, 112 N. C. 566.

We find, however, that that portion of section 10695, Revised Statutes 1909, which requires defendant to pay a certain portion of his fees into the county treasury for the benefit of the school fund, is not unconstitutional; and that the Legislature has full constitutional power to place probate judges upon a salary or upon fees, as in their judgment may seem likely to promote the public welfare.

In their oral argument, learned counsel for defendant assert that the law under consideration, in so far as it authorizes probate judges to collect fees for their services and pay the same into the county treasury, amounts to ‘ a sale of justice,1 ’ and therefore is in conflict with section 10, article 2, Constitution of Missouri, prescribing that justice shall be administered 41 without sale, denial or delay.” There is no such issue in the pleading in this cause, and it will be time enough to consider that issue when some person makes complaint that he has been required to purchase jus- ■ tice.

It, therefore, follows that the judgment of the circuit court of Buchanan county should be reversed, with directions to enter judgment in favor of the plaintiff according to the prayer of its petition. It is so ordered.

Valliant, G. J., Lamm and Ferriss, JJ., concur; Kennish, J., concurs in all except what is said about estoppel to contest validity of law; Graves, J., dissents, and Woodson, J., dissents in opinion filed.

DISSENTING OPINION.

WOODSON, J.

I dissent from the majority opinion delivered herein, generally and specially, for three reasons, to be presently and briefly stated.

(a) First, in my opinion the probate courts of the various counties of the State are county, and not State offices, as held in said opinion.

The office of probate judge from the organization of the State down to this time has been considered, treated and accepted as a county office, by the bench, bar and laity; and that fact has been questioned but once during that long period, nearly a century, and then this court in express terms held it to be a county office.

The case in which that ruling was made is the case of Henderson v. Koenig, 168 Mo. 357. It was first decided in Division No. One, by the unanimous court, but subsequently the case was transferred to Court in Banc, and after a careful consideration the divisional opinion, written by Sherwood, P. J., was adopted as the opinion of the Court in Banc, all concurring except Valliant, J., who was absent.

The court at that time was composed of Burgess, C. J.,- Sherwood, Robinson, Brace, Marshall, Valliant and Gantt, JJ. The ability and legal attainments of those jurists are well known, not only in this State, but are recognized by the legal profession throughout the United States.

The opinion of Sherwood, P. J., in that case shows careful consideration; exhaustive, investigation and great learning, leaving nothing new to be said upon the subject.

■ The universal acceptation, by the bench and bar, that said office is a county office, for such a length of time, and reinforced by the masterly opinion in the Henderson case, should alone arrest the attention of this or any other court before ruling to the contrary.

But independent of that, let us see what the effect of the ruling in the case at bar must inevitably lead to, if followed.

My learned associates hold that a county office is one whose territorial jurisdiction is coextensive with the county for which it is created, and through which “the county performs its usual political functions, its functions of government.”

This is the test, according to my colleagues, by which a county office is to be determined; and according to that test, they say that the probate court is not a county but a State office, because the functions of government are not transacted thereby or therein, but is designed to administer the estates of deceased persons, minors, etc., and is therefore a judicial or a State office.

I have been taught, and have believed, from infancy up to this time, that the judiciary was a part of the government, both State and National. The people of this State attached such importance to this subject, that they devoted the entire article 3 of the Constitution to it. ■ It is there solemnly declared, by a sovereign people, that the powers of government are divided into three distinct departments, namely, the legislative, executive and judicial; and it is also provided that each shall be confined to a separate magistracy, and that no person, charged with the exercise of the powers belonging to one of those departments, shall exercise any power belonging to either of the others, except in the' instances in the Constitution expressly directed or permitted.

It seems to me that this ruling of my associates practically eliminates the judicial clause of this article from the Constitution. But independent of that, if they have stated the true test, by which a county office is differentiated from a State office, then what will become of the offices of the clerks of the probate courts, the clerks of the circuit court, the recorders of deeds, the justice of the peace and the sheriffs of the various counties? Are they not county offices? If I remember correctly, this court has repeatedly held that they are not State offices, yet none of them perform any more governmental functions .than do the probate-courts.

If the probate courts are State offices, then by parity of reasoning, it must be held that the offices just mentioned are also State offices. Such an announcement would be no more novel than startling in character. Yet if the former is true, then the latter proposition must necessarily be true also. In my opinion neither is true.

(b) The second reason for my dissent is: The opinion holds that the respondent is estopped from questioning the constitutionality of section 10695, Revised Statutes 1900, fixing and regulating the fees to be taxed and collected 'by the probate courts of certain counties in the State, of which Buchanan is one, for the reason, that said section was in full force and effect at the time respondent was elected and accepted the office of probate judge, and at the time he gave the bond mentioned in the pleadings, and thereby having agreed to accept the fees so prescribed by said section, he will not now be heard to question that agreement, or the constitutionality of the statute, under which it was made.

That to my mind is a monstrous proposition; and why men of reputed and known legal ability can be misled by such clear sophistry is beyond my comprehension.

Let us suppose a case. By section 13 of article 6 of the Constitution and by the amendments thereto, it is provided that the judges of the St. Louis Court of Appeals shall receive for their services the same compensation that is now or may be provided by law for the judges of the circuit court of the city of St. Louis, which I believe is $5500', per annum. Suppose further, that the next Legislature should' enact a statute fixing the compensation of the judges of the St. Louis Court of Appeals at $3000 per annum, without referring to the salary of the circuit judges of that city, and thereafter, while said statute still existing, Judge Reynolds, the next retiring judge of that court, I believe, should be re-elected and take Ms seat, would it be seriously contended for one moment that, because he accepted the office with that statute in existence (though void, as it must be conceded it would be) that he could not challenge its constitutionality? I think not. And the plain reason of that is, that the statute would be void — that is, it would have no life, force or effect; it would be a dead letter, and would be as inoperative as if it had never been enacted. [Norton v. Shelby County, 118 U. S. 425.] “An unconstitutional law is no law at all. ’ [Williams v. Railroad, 233 Mo. 681.]

I have repeatedly pointed ont the class of cases to which the rule here announced by the majority applies, and have shown that said rule has no application to the facts of the case at bar, or to similar cases, but notwithstanding said fact, my learned brethren continue to err, without even condescending to consider the difference between the two classes of cases. I refer to those cases again: State ex rel. v. Turner, 210 Mo. 77; McCully v. Railroad, 212 Mo. 1, l. c. 54 to 59; United Shoe Machinery Co. v. Ramlose, 231 Mo. 508; International Text-Book Co. v. Gillespie, 229 Mo. 397; State ex rel. v. Grimm, 239 Mo. 135; State ex rel. v. Blake, 241 Mo. 105. Those cases in brief hold that when a legal right is created by a valid law, that right cannot be taken away or destroyed by an' invalid or unconstitutional law.

In the ease at bar, the probate court of Buchanan county was by a valid law created, more than a half a century prior to the enactment of said section 10695', and the fees incident to that office were also fixed by a valid law, long prior to said enactment. That being true, clearly the invalid law could n'ot repeal either of the two prior valid laws, nor can a void law be successfully interposed as a bar, as an estoppel to the claim of a right created by statute, such as we have in the case at bar.

The respondent in no sense of the word is claiming the fees in question under this void section of the statute mentioned, but is doing so by virtue of the laws that established the probate court of Buchanan county, and under the previous valid laws which fixed the fees of that office, long prior to the enactment of said section 10695, which he is repudiating, and which to my mind, is clearly unconstitutional.

The learned writer of the opinion in this case recognizes the invalidity of that section, by resorting to this flimsy plea of estoppel to bridge the case over that yawning and otherwise impassable chasm.

My learned associates confuse this class of cases with that class to which the case of State v. Seebold, 192 Mo. 720, belongs. The latter class hold, and correctly so, that when the right asserted by a party, created by, or purporting to be created by, and is based upon, an unconstitutional statute, the party making the assertion will not be permitted to hold on to the benefits received by him under the void statute, and at the same time be heard to say that the parts thereof imposing the burdens upon him are unconstitutional, null and void. In other words, if he claims the benefits given by a void statute, he will not be heard to say that the burdens imposed upon him by the same statute are void. It being void in toto he must repudiate it in toto. [State ex rel. v. Turner, 210 Mo. 77, l. c. 84.] There is, however, this apparent exception to this latter rule (which upon reflection will be seen to be only apparent and not real) and that is, namely, if that portion of the statute conferring the right claimed is valid, and can be separated from the invalid part,.which creates the burdens, the former will be upheld by the courts, unless it appears therefrom that the void part would not have been enacted unless the invalid part had been enacted also; that is unless the invalid part was the controlling or inducing cause of the enactment. [State ex rel. Bixby v. City of St. Louis, 241 Mo. 231.]

But there is another view to be taken of the contention that the respondent is estopped from raising the unconstitutionality of this statute, because of his agreement to accept the fees prescribed by this invalid statute, by accepting the office after the enactment of the statute. Suppose the respondent, instead of agreeing indirectly to accept the fees prescribed and limited by said section 10695 (which it is claimed he did by executing the bond mentioned), and in express terms agreed to have accepted those illegal fees as eompensa- ' tion for his services, or a sum, say, equal to one-half of the legitimate fees as his compensation, then what would have been the result?

In the case of State ex rel. v. Collier, 72 Mo. 13, the defendant, while a candidate for the office of probate judge of Callaway county, agreed, if elected, to perform the duties of that office for the sum of $1200 per annum, instead of the legal fees of the office, which at the time amounted to about $2600 per annum. He was elected and after qualifying, the Attorney-General instituted quo warranto proceedings against him to ■oust him from said office, upon the ground that said agreement amounted to a bribery of the electors, and resulted in his election. The ruling of the court is tersely stated in the syllabus of the case, which is as follows: ‘-‘It is unlawful for a candidate for public ■office to make offers to the voters to perform the duties of the office, if elected, for less than the legal fees. An election secured by means of such offers is void. ’ ’

The mere fact that the agreement (conceding that respondent made such an agreement by accepting the ■office) was made under the guise or sanction of a void statute, would in no manner change the legal effect of the agreement. The one would be just as illegal as the other, and equally reprehensible.

But the truth of the matter is, respondent in the case at bar made no agreement, either expressed or by implication, in so far as this record shows, to perform the services of probate judge for the sum specified in said section 10695, and for that reason he should not be estopped from questioning the constitutionality of the same. If upon the other hand he made such an agreement either expressly or by implication, then that agreement is' uecessarily void under the rulings in the case of State ex rel. v. Collier, supra; and if elected upon that understanding, the election would be void, and he should be ousted from the office.

(c) The third reason I have for dissenting from the majority opinion is, that said section 10695 violates section 10 of the Bill of Rights, which reads as follows: “The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay. ’ ’

This section of the Constitution has no reference to a corrupted sale of justice, as popularly understood, such as bribing of the judge or jury, but refers to and was intended to abolish the sale of justice, as it existed in England, under the early common law, which will be presently considered. This is manifested by the fact that the last clause of section 10 of the Bill of Rights is substantially the same as section 40 of the Magna Charta, which is as follows: “Nulli vendemus nulli negabimus aut differemus, rectum aut justiciam.”

We have occasion to touch upon this subject in the case of Hayes v. Mining and Milling Company, 227 Mo. 288. It was there held that a statute which required a fee of three dollars to be paid by every person who brought a suit in the circuit court of certain counties of the State, to the clerk of the court, for the use of the general revenue of the county, amounted to a sale of justice, and was a violation of said section 10 of the Bill of Rights prohibiting the sale of justice.

Section 40 of the Magna Charta was aimed at the same abuses discussed in the Hayes-Mining & Milling Co. case. Under the early common law excessive fees were exacted and paid by persons in whose favor process of law was refused or delayed as against their adversaries. The wealthy and influential obtained in behalf of themselves and dependents, those favors, by • means of that abuse. Those fees were openly exacted and paid before the charter and under the guise of a willing contribution (sponte) after, and were absorbed by the public revenue. The king or his deputies got the benefit of those fees just as the county or State .gets the benefit of the fees mentioned in the proviso of section 10695. [McKechnie’s Com. Magna Charta Charts, 457-463; 2 Stubbs, Const. History, 633; 3 Lingard History of England, 53-4.]

The English people in the thirteenth century no more thought of procuring original or judicial process without paying the reasonable costs thereof, than do the citizens of this State and nation think of doing so in the twentieth century; but the intention of both the Magna Charta and section 19 of the Bills of Rights, is that revenues for State and municipal purposes shall not be levied in any form or under any guise, upon the administration of justice, and that those who have to resort to the courts of justice, and especially the widows and orphans whose estates are under the jurisdiction and control of the probate courts, shall not be •compelled to pay more for the justice there administered to them, than reasonable fees for the services performed for them by the officers of the court. The Illinois Constitution in express terms provides for payment of “reasonable compensation for services rendered” by such officers; and when we consider our Constitution in the light of precedents and the history of our administration of justice, it must be held that it necessarily implies what the Illinois Constitution provides for in express terms, namely, that reasonable fees may be taxed in each case as compensation for the services performed therein by the court officers. If that authority is not necessarily implied in our Constitution, then clearly all systems of fees in judicial proceedings are unauthorized and are absolutely null ■and void. But even under section 10 of the Bill of Rights, the Legislature has no right, power or authority to authorize the taxation and collection of unreasonable or excessive fees for any purpose, and a statute which authorizes such taxation is clearly unconstitutional, null and void, and amounts to a sale of .justice.

The enactment of said section 1069'5' was a legislative determination that the fees of the probate judges, in the counties mentioned therein, are excessive and unreasonable, and it shobld have reduced the amount of the fees authorized by previous acts to be collected instead of maintaining them, and providing as it does, for the payment of the excess over the sum, $3000', into the treasury of Buchanan county for the use of the genera] revenue fund.

Had the latter been done, the statute would have been constitutional, but as it is if is clearly unconstitutional, null and void, -in that it makes the litigants and estates in those courts pay more than the cost of performing those duties, and consequently amounts to a sale of justice, just as much as did the payment of the excessive fees in England amount to such a sale. It clearly violates said section 10 of the Bill of Rights.

The question was asked during oral argument of the cause, What would be done with the excessive fees .which have been collected by the respondent? The answer to that question rests with the Legislature and not with the courts. If it had enacted a valid law, reducing the fees to a sum which was reasonable, he would not have collected them, and consequently no such question could have arisen.

In- passing, however, it might be suggested that if the fees collected by respondent are unreasonable and constitute more than reasonable compensation for the services performed by the officers of the court, perhaps the excess would be illegal and non-collectible. To illustrate, suppose the Legislature should by statute increase the fees of the probate judges of the counties mentioned ten or twenty fold, and require that all sums above $3000 should be paid into the county treasury for general revenue purposes, would the courts hesitate to declare such a statute void or violative of said section 10 of the Bill of Rights? Clearly not. There is no difference in principle between the case at bar and the case supposed; the difference is one of degree and not of principle.

I am, therefore, of the opinion that the judgment of the circuit court should be affirmed.


author: BROWN, J.

text:
    THE STATE ex rel. GREENE COUNTY, Appellant, v. GRANT G. LYDY et al.
    In Banc,
    April 23, 1912.
    PLEADING: Demurrer: Failure to File Bond Sued On: Probate Judge. The failure of the county to file with its petition the official bond of the probate judge sued on or to file a copy of such bond with the petition, in a suit to compel the probate judge to pay into the county treasury the fees collected by him in excess- of the amount of the salary of the circuit Judge, cannot be raised by a demurrer 'to the petition.
    Appeal from Greene Circuit Court. — Hon. Alfred Page, Judge.
    Reversed and remanded (with directions).

      James H. Mason and Neville & Gorman for appellant.

      J. T. White and Hamlin é Seawell for respondents.
   BROWN, J.

The issues in this case are precisely the same as those decided by this court In Banc in State ex rel. Buchanan County v. Imel, at this term, 242 Mo. 293, except that in the case at bar judgment was rendered in favor of defendant Lydy upon a demurrer which, in addition to assailing the constitutionality of part of section 10695, Revised Statutes 1909, also alleges that no bond is filed with said petition, nor is a certified copy thereof filed.

The failure of the plaintiff to file with its petition the official bond given by the defendant as judge of the probate court of Greene county or to file a copy of such bond with its petition, cannot be raised by demurrer. [Hannibal & St. Joe Railroad Company v. Knudson, 62 Mo. 569, l. c. 571; State ex rel. Gilbert v. Eldridge, 65 Mo. 584,l. c. 586; Christie v. Railroad, 94 Mo. l. c. 456.]

As the plaintiff’s petition states a cause of action against the defendant, we will reverse the judgment of the circuit court of Greene county and direct it to overrule defendant’s demurrer and try the cause pursuant to the law as announced in our opinion filed in the ease of State ex rel. Buchanan County v. Imel, supra.

It is so ordered.

All concur except Woodson and Graves, JJ., who dissent.