author: CHARLES H. MAYER, Special Judge.

text:
    CARRIE D. DAVIS et al., Appellants, v. WILLIAM DAWSON et al., Appellants.
    In Banc,
    February 18, 1918.
    1. PRESUMPTION OF DEED: Not Pleaded or Ruled. When the facts warrant it the court will presume the execution and delivery of a deed. But such presumption will not be indulged on appeal, if such issue was neither pleaded nor ruled nor relied upon in the trial court.
    2. -: Prima-Facie Case: Appellate Rule. When a prima-facie case is made by plaintiffs, and no instructions are asked or given, the appellate court will not review the evidence for the purpose of determining its sufficiency to overthrew that prima-facie case And plaintiffs in an action to quiet title make a prima-facie case by showing a perfect paper title in themselves, and where they hu,ve done that and the trial court sitting as a jury has found that they are entitled to recover the land, the appellate court will not rule, on defendants’ appeal, that the evidence establishes a presumption that plaintiffs’ ancestor had executed and delivered a . deed to defendant’s ancestor; for the burden of overcoming the prima-facie case and of establishing the presumption was on defendant, and it is not the province of the appellate court to say that the evidence did actually do that, in the face of a finding by the trier of the fact to the contrary.
    3. LIMITATIONS: Thirty-Year Statute: Necessary Facts. Where plaintiffs have made a prima-facie case of ownership of the land by showing the paper title to be in them, it becomes necessary for defendants, in order to overthrow that case and establish ownership in themselves under the thirty-year Statute of Limitations, to prove that for a period of thirty consecutive years plaintiffs, either themselves or by some one under whom they might claim, had no possession of the land, had paid no taxes thereon, had failed to bring suit within one year thereafter, and that defendants were in lawful possession.
    4. -:-: Lawful Possession: No Color of Title: Part of Tract. • Possession without color of title is confined to the part actually occupied; and where defendants have no color of title, and the evidence establishes a paper title in plaintiffs, it becomes necessary for the trial court to determine from all the evidence what part of the tract the defendants are actually occupying and are entitled to claim under the thirty-year Statute of Limitations. Judgment cannot be rendered for them, under such circumstances and in view of that statute, for so much of the tract as they have not had in actual possession.

      5. -: -: Payment of Taxes. The proof of the non-payment of taxes for thirty years is not limited to direct evidence; it may be established by circumstantial evidence. And the circumstances of this case were such as to amount to substantial evidence that neither plaintiffs nor those under whom they claim had paid . any taxes for thirty years.
    6. -: Remaindermen: Renunciation of Will: How Shown: Minute of Piling: Admission. The minute or docket entry made in the record of the proper court, reciting that the widow files her renunciation of her husband’s will, which gave her a lifetime interest in one-fifth of his real estate, remainder to plaintiffs, is not only evidence that a proper writing purporting to be a renunciation of the will was filed, but is a solemn admission, binding on her and the remaindermen, that the will was renounced, and when followed by long years of acquiescence and treated both by her and them as valid arid binding, is evidence that the renunciation was in proper form, duly executed and 'acknowledged; and such evidence, uncontradicted, bars the remaindermen to assert the Statute of Limitations did not begin to run against them during her life.
    Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.
    Affirmed,

      John A. Hope, Leslie C. Green and Ernest A. Green for plaintiffs.
    (1) The record title to all of the lands in controversy was in the plaintiffs and they were entitled to recover all of the lands in controversy, unless barred by the provisions of Sec. 1879 or 1884, R. S. 1909, known as the ten and thirty year Statutes of Limitations respectively. The sheriff’s deed from Thomas H. Dawson, to George W. Dawson, dated April 20, 1857, and recorded April 24, 1857, was effectual to convey to George W. Dawson all title to the lands described therein that said Thomas H. Dawson might have had therein at that date. Davis v. Kline, 76 Mo. 310; Ellis v. Jones, 51 Mo. 180; Stewart v. Severance, 43 Mo. 322; Union Bank v. McWharters, 52 Mo. 34; Lewis v. Morrow, 89 Mo.. 174; Block v, Morrison, 112 Mo. 343;. Price v. Real Estate Assn., 101 Mo. 119 Davis v. Peveler, 65 Mo. 189; Randall v. Snyder, 214 Mo. 23. (2) The trial court erred in holding that the plaintiffs were barred from recovering any portion of the lands in controversy by virtue of the provisions of Sec. 1879, R. S. 1909, known as “the ten-year Statute of Limitations.” The testimony wholly failed to show that there had been actual, open, hostile, exclusive and continuous possession under claim of ownership of any portion of the lands in controversy, by defendants or other ancestor, Thomas H. Dawson, for any period of ten consecutive years. Cook v. Farrah, 105 Mo. 492; Meier v. Meier, 105 Mo. 411; Wilkerson v. Thompson, 82 Mo. 317; Nye v. Alfter, 127 Mo. 529; Hunnewell v. Adams, 153 Mo. 440; McCune v. Goodwillie, 204 Mo. 306. (3) The trial court’s judgment is in the face of the law as declared by it in declaration of law number five. In order for plaintiffs to be barred from recovering by the provisions of Sec. 1884, R. S. 1909, known as the thirty-year Statute of Limitation, the proof must have shown (which it did not) that the defendants and their ancestor, Thomas H. Dawson, or some person other than the plaintiffs or their ancestor, had been in actual possession of the lands in controversy for some period of thirty-one consecutive years prior to the filing of this suit; since, during the time that there was no actual possession by any person, the record title of plaintiffs drew the constructive possession to them, and placed them in possession within the meaning of the provisions of the above section. Weir v. Lumber Co., 186 Mo. 388; Hall v. French, 165 Mo. 442; Sell v. McAnaw, 158 Mo. 471; Stone v. Perkins, 217 Mo. 246. (4) There was not sufficient testimony to show that neither the plaintiffs nor those under whom they claim had paid any taxes on the land in controversy for a period of thirty years prior to the bringing of this suit; therefore the provisions of Sec. 1884, R. S. 1909, have no application to this case, and the plaintiffs are not barred by the thirty-year Statute of Limitations. (5) Even if the thirty-year Statute of Limitations had any bearing upon this case, as we deny, still defendants’ possession could not be extended beyond what land they have actually been in possession of for more than one year prior to the filing of this suit. In other words the provisions of Sec. 1882, R. S. 1909, relative to color of title, do not apply to the thirty-year statute. Collins v. Pease, 146 Mo. 135; De Hatre v. Edmonds, 200 Mo. 246; Scannell v. American Co., 161 Mo. 619; Crispen v. Hanahau, 50 Mo. 536; Stevenson v. Black, 168 Mo. 549; Schultz v. Lindell, 30 Mo. 310; Ivy v. Yancey, 129 Mo. 501. (6) The Court erred in not rendering judgment in favor of the plaintiffs for all of the land known as the Miller Tract. As to this land defendants could not recover, as they had no paper title whatever to the same and there was no showing-of a sufficient possession to justify a recovery on their part by virtue of limitations. Pharis v. Jones, 122 Mo. 125; Sec. 1882, R. S. 1909; Schultz v. Lindell, 30 Mo. 310; Fugate v. Pierce, 49 Mo. 441; Wilson v. Purl, 148 Mo. 449. (7) The fact that these lands or any portion thereof were subject to overflows from the Mississippi River cannot aid the defendants in their defense of either the ten or thirty year Statute of Limitations, since those statutes only confer title upon those who are in actual possession for the requisite length of time, and during the time that said lands were overflowed and there was no actual possession thereof by any one possession was constructively in the holders of the legal title to said lands. Western 'v. Flanagan, 120 Mo. 61.

      James A. Seddon also for plaintiffs.
    (1) The lower court found against the defendants on the issue of facts whether or not there was a lost deed as claimed. The record shows that there was no evidence of a conclusive nature that such a deed had ■ever existed. The presumption of such a deed, if any,must be predicated on the alleged facts shown by the witnessess of the defendants. None of this evidence was admitted to be true and much of it was contradicted by the witnesses of the plaintiffs. Hunter v. Wethington, 205 Mo. 284. The defendants asked no instructions and excepted to no ruling of the trial court during the progress of the trial. They rely on no error of law in their brief. They can and do only complain that the finding of the court, in awarding a part of the lands to the plaintiffs, is against the weight of the evidence, which they contend shows that Wash Dawson made a deed not recorded but now lost, to Thomas H. Dawson, conveying to him all these lands. This being an action at law, this court cannot disturb the finding of the trial court on that issue. Slicer v. Owens, 241 Mo. 319. (2) The trial court under the principle of color of title applied to the thirty-one year statute, found in favor of the defendants for all of the Nether-ton Tract. We concede that the doctrine or principle of color of title whereby the possession of a part of a tract of land is extended by construction to a whole tract, as declared in Sec. 1882, R. S. 1909, applies with the same force and in the same manner to the fhirtv-one year Statute of Limitations as it does to the ten-year statute. Keaton v. Hamilton, 264 Mo. 564. But it applies with no greater force. While it is applicable to a proper ease under this statute, it has no application under the facts of this particular record. No question of color of title can possibly arise touching the claim of the defendants to the Miller Tract, for they never had any paper or record title to it. But the court erred in its application of the doctrine of color of title to the claim of the defendants to the Netherton Tract under the thirty-one year Statute of Limitations. By its application it found that by reason of the possession by the defendants of a part of the Southwest fractional quarter of section 6 for a year, and the exercise of acts of ownership over the rest of the Netherton Tract, the possession of the part of the tract drew to it by construction, the possession of the whole, to which the title of the defendants was perfected by the judgment. It is beyond dispute that there was no actual possession or claim of such possession of any part of the Nether-ton Tract except that part of the Southwest fractional quarter of section 6, which Avas fenced by Dr. George W. Dawson since 1904. All the rest of it was and is unfenced, wild or timber land, and if the defendants are to recover in this case any part of that tract not now fenced, it must be by the doctrine of color of title. Thomas H. Dawson could assume the relation of an adverse claimant of the lands, only by some unequivocal act of disseisin, and ouster, equivalent to an entry, and of such a nature as to surely advise Wash Dawson of the fact of the change, of the permissive relation. In making that act of disseisin or ouster of Wash Adams, if it was made at all, the heirs of Thomas H. Dawson had no title or deed to constitute color of title. We must distinguish in this case between possession under a claim of title and under color of title. “The distinction lies in the quantum of the land possessed. As in the case of the real title, a constructive possession attaches- itself to color of title.” Title to land by adverse possession without color of title will be confined to the part actually occupied. Eannels v. Eannels, 52 Mo. 108. Constructive possession of a whole tract by reason of actual possession of a part is never based upon a “claim of title” merely. That there shall be color of title there must be a deed purporting to convey the whole or some proceeding or instrument giving color and defining boundaries as 'well as active possession of a part. Slicer v. Owens, 241 Mo. 319; Fugate v. Pierce, 49 Mo. 441; Long v. Higginbotham, 56 Mo. 245; Allen v. Mansfield, 108 Mo. 343. (3) The trial court erred in overruling the objection of the plaintiff to the introduction in evidence of the inventory of the estate of George W. Dawson. It is true that it showed that these lands had not been inventoried. But this merely showed a breach of duty of the executrix. For it is the duty of the legal representative to inventory all the real estate, of which the title appears of record and leave the question of a better right in another, to the courts. -It was not shown that the executrix ever took possession of the real estate or that there- was ever any order on her to do so. Therefore even a positive declaration as to the title by her in the inventory could not have bound the heirs or in any wise have affected their rights in the land, either favorably or prejudicially. (4) There was no evidence that Laura A. Dawson had not paid taxes on these lands in thirty years prior to July 1, 1904. She might have paid them between 1884 and 1893 for aught to the contrary shown by the record. She had an interest, in the lands either as a life tenant or as doweress. In either capacity her payment of the taxes would have inured to plaintiffs’ benefit. Statutes of Limitations are based on public policy. For its sake the law permits what is confessedly a wrong to ripen into a right. It is not for any merit of the claimant, for whom the law has no tender solicitude. The burden is on him to make out his case. No presumptions are indulged in his favor, and he must bring clear and positive proof of his claim. Lynde v. Williams, 68 Mo. 360. (5) The trial court erred in vesting the absolute fee simple title to the Netherton Tract in the defendants under the theory that the plaintiffs were barred by the Statutes of Limitations. Neither the ten-year statute nor the thirty-one-year statute begins to run against remaindermen until the death of the life tenant. Hall v. French, 165 Mo. 430. Under the will of Wash Dawson his widow, Laura A. Dawson, having remarried, was entitled to a life estate in one-fifth of these lands, with remainder to these plaintiffs. She was alive at the institution of this action. She died before the trial. But the defendants will say that she renounced the will of her husband. No renunciation was shown in evidence. The defendants, however, did read in evidence over the objection of the plaintiff’s, an entry of the probate court of New Madrid County reciting: “Now comes Laura A. Dawson and by attorney files her renunciation of the provisions of the will of her deceased husband.” But this entry purports to be a mere memorandum of the filing of an instrument and if it had purported to be a judgment binding in any way upon these plaintiffs, it could have no force. Brannock v. McHenry, 252 Mo.. 1. The law does not require or contemplate any judicial action of the court on the renunciation. It it not even necessary to “file” it in court. A will can be renounced in hut one way; by a writing duly executed and acknowledged as a deed of lands and filed in the office of the clerk of the probate court. Sec. 361, R. S. 1909. The Avriting itself is only evidence of the renunciation. Of course, under proper circumstances it may. be proved by secondary evidence. But it was not produced and there Avas no attempt to prove it or to account for its absence.

      James R. Brewer and Wilson Cramer for defendants.
    (1) Defendants allege in their answer and have shown that they were in the lawful possession of the premises in controversy on the 1st day of July, 1904, and that neither the plaintiffs, nor anyone under whom they claim, or might claim, have been in possession of the same, or any part thereof, for more than thirty years prior to that date and have not paid any taxes on any part of said land during that period. By. virtue of the thirty-year statute whatever right and title plaintiff had, if any, was forfeited and vested in defendants, who Avere therefore entitled to judgment for the whole of the Miller Tract, as well as for the Netherton lands. R. S. -1909, sec. 1884; Campbell v. Greer, 209 Mo. 199. (2) Plaintiff’s ancestor, George W. Dawson, died in 1862. He was never in possession of any part of the land in suit and made no claim' thereto in his lifetime, nor Avas any asserted by his heirs until the institution of the present suit in 1909. Thomas H. Dawson remained in possession of the land from 1856, claiming to he the owner, until his death in 1906, notwithstanding, as it now transpires, that the record title was in his brother, George W. Dawson. What occurred between these two brothers in 1857- — more than fifty years before this suit was brought — no one knoAvs. Their relations were most cordial; they were neighbors. Under the evidence in this cause the court below after this great lapse of time, should have indulged the presumption of the execution of a conveyance by George W. Dawson to Thomas H. Dawson and should have given judgment in favor of the defendants for all of the land involved. Brown v. Old-ham, 123 Mo. 631; Manning v. Coal Co., 181 Mo. 359; Glasgow v. Car & Foundry Co., 229 Mo. 599; Johnson v. Timmons, 50 Tex. 335. (3) Citing in conclusion, as directly applicable to this case the case of Hubbard v. Slavens, 218 Mo. 615, these appellants submit that the judgment of the court below should be reversed with directions to enter judgment in their favor fox-all of the lands involved.
   CHARLES H. MAYER, Special Judge.

Plaintiffs are the three daughters and the son of George W. Dawson. Oix August 26, 1909, they brought this suit in the circuit court of New Madrid County, making the four soxxs and the daxxghter of Thomas H. Dawson defendants, for the purpose of deterxnixxing and quieting the title to,five hundred and seventy-nine acres of laxxd lying ixx said county. On change of venue the cause was transferred to Butler County, where on May 3, 1911, judgment was rexxdered.

George W. Dawson and Thomas H. Dawson were brothers. Prior to 1857 and until their death, they resided ixx New Madrid County, where all of the plaintiffs axxd all of the defendants were born, and where all of them eontixxue to reside. The land in' controversy is located oxx the Mississippi River and is near the town of New Madrid, in which town, or in the vicinity of which, all of the parties to this suit have spent their lives. The land lies together, but is referred to in the record as the Netherton Tract, containing four hundred axxd nineteen acres, and the Miller Tract of one hundred and sixty acres. Title to all of the land emanated from the Uxxited States Government more than thirty years before the filing of this suit.

In 1847 Thomas IT. Dawson became the record owxxer of the Netherton Tract. On April 20, 1857, the Netherton Tract was sold under execution and conveyed by sheriff’s deed to George W. Dawson, who on August 7, 1856, had obtained title to the Miller Tract by conveyance from one Miller, the then record owner.

On November 5, 1856, George W. Dawson conveyed the Miller Tract to Henry Clay Watson, who on April 7, 1857, re-conveyed that tract to George W. Dawson.' Thus the record title to all of the land came to George W. Dawson, and in him it remained until his death in 1862, when is vested in these plaintiffs, his children, who still retain it.

The defendants, laying no- claim to paper title, pleaded, by amended answer, 1st, the ten-year Statute of Limitations, and, 2nd, such facts as to give them title acquired by virtue of the thirty-year Statute of Limitations.

From the evidence we adduce that Thomas H. Dawson, who • died in 1906, moved onto the land in controversy in the early fall of 1856, and, although the record title to the Miller Tract was then in his brother, George W. Dawson, or for a short time in Henry Clay Watson, Thomas H. Dawson set about clearing a part of that tract, built a house thereon, and erected a saw-mill on the Netherton Tract.

Prior to moving onto this land, Thomas H. Dawson had lived with his mother on the old Dawson homestead in or near the town of New Madrid. The mother died in August, 1856, and soon thereafter Thomas H. Dawson moved from the old homestead to the land in question, and his brother George W. moved into the old homestead and continued to reside there until his death in 1862. Although George W. Dawson obtained title to the Netherton Tract in 1857 under the sheriff’s deed heretofore referred to, so that he then held title to all of the land, he never took possession of any of it, and for more than two years Thomas H. Dawson continued to reside in the house which he had built on the Miller Tract, continued his clearing and the operation of a sawmill and wood-yard on the Netherton Tract, from which wood-yard, he sold cord wood to the steamboats plying the Mississippi Eiver. In 1859, being driven away by the overflow of the river, he moved to New Madrid, where he remained until his death.

All of the land was and is subject'to overflow, the water covering it to a depth of from five to fifteen feet, frequently standing thereon for several weeks. There were few successive years from 1856 until the trial that the land did not overflow. While he resided on the land in controversy, Thomas H. Dawson stated to friends that he had gone there to make his permanent home. After moving back to New Madrid, he continued to speak of the land as his, and there is no testimony that any other person laid any claim to it until within a few years before this suit was brought. Soon after Thomas H. Dawson moved to New Madrid, the house which had been built on the Miller Tract was torn down and moved away, but at some time later a house was built on the Netherton Tract by him, or by some of his sons for him, and that house was on the Netherton Tract at the time of the trial.

From 1857 until the trial, Thomas H. Dawson or some of his sons, on occasions, sold timber off the land; at intervals they had tenants there who cultivated a small portion of the Miller Tract on shares; piling, staves and saw logs were sold from time to time off the Netherton Tract. Because of the frequency with which the land overflowed, it was impossible to cultivate any of it continuously, but various tenants were put on the place to clear it, to cut cord-wood and saw-logs and to raise stock. Thomas H. Dawson had all of the land surveyed in the eighties in order that he might determine whether or not those cutting timber about the land were encroaching upon it.

It is certain that at least some of the plaintiffs did not know that plaintiffs ever had any interest upon which to base a claim to the land until Mr. Lee Hunter tried to buy the interest of Clay Dawson, one of the plaintiffs, which was very shortly before this suit was brought. If the mother of plaintiffs, who had remarried in 1867, had any knowledge of their interest in the land, it is certain that she had not conveyed the information to her daughter, Mrs. Jackson, who first heard of it at the time of the attempted purchase just referred to, and there is no evidence that the mother ever communicated such information to any of her children. The inventory of her husband’s estate, of which she was executrix, contained a long list of real estate owned by him, but made no mention of the land in controversy. All of the plaintiffs testified that no taxes had been paid by-them; there was no testimony that their mother had paid taxes on this land. William Dawson, one of the defendants, who was collector from 1870 until 1874, testified that during that time he paid the taxes. Robert Dawson, another defendant, who succeeded William Dawson as collector and served as such until 1880, testified that during that time he paid the taxes. R. J. Waters, who followed Robert Dawson as collector and served as such from 1880 until 1884, testified that during that time Robert Dawson paid the taxes. Mr. Neal and Mr. Steele, who successively followed Mr. Waters in the office of collector, were dead at the time of the trial. H. E. Broughton, who was the collector at the time of the trial and who had held that office continuously since 1894, testified that the defendants had paid the taxes during all of that time.

In about 1904, Doctor Dawson, one of the defendants, and his son were in charge of the place under Thomas H. Dawson; and the defendants, through Dr. Dawson, occupied the house which had been built on the Netherton Tract from that date until the trial; they fenced a woods pasture on the Netherton Tract and fenced and cultivated twenty-seven and one-half acres on the Miller Tract. They salted their stock on the Netherton Tract and used it for grazing their hogs and cattle.

The cause was submitted to the .court sitting as a jury and the court found for the defendants as to all of the Netherton Tract and twenty-seven and one-half acres of the Miller Tract, that being the portion of the Miller Tract which had been fenced and cultivated by Dr. Dawson, and the court entered judgment quieting the title to that much of the land in the defendants. The court found for the plaintiffs as to the remainder of the Miller Tract, and entered judgment quieting title to it in the plaintiffs. From this judgment both the plaintiffs and the defendants appealed.

We shall first dispose of defendants’ assignment of errors. Finding fault with.the court’s failure to award all of the land to them, they contend that the judgment should be reversed with directions to the trial court to enter judgment quieting-title to all of the land in controversy.in them,, because, they urge, that the court erred in failing to presume that after April, 1857, a deed was executed by George W. Dawson to Thomas H. Dawson conveying all of the land in controversy.

All will agree that, when the facts warrant it, precedent and sound reason justify the court in presuming the execution and delivery of a deed. [Dessaunier v. Murphy, 22 Mo. 95; Brinley v. Forsythe, 69 Mo. 176; Manning v. Coal Co., 181 Mo. 359; United States v. Chavez, 175 U. S. 509.] But, admitting this, as must be done, and conceding, without deciding, that the facts in this case would have justified the trial court in indulging the presumption of a deed, defendants’ contention cannot be sustained for two reasons:

(a) No such issue was tried in the court below. In their original answer defendants ‘ ‘ admit that they claim title to the real estate and allege that they own the same in fee. ’ ’ But defendants filed an amended answer in which their only claim to the land was based upon the ten-year Statute of Limitations, which claim is not insisted upon here, and upon the thirty-year Statute of Limitations. When these answers and the whole course of the trial are considered, the conclusion seems inevitable that defendants below not only did not rely upon the presumption of a deed, but that they deliberately determined not to present that question, and to rest their case on Section 1884. Nowhere in the record before us except in the abandoned answer, is there the slightest suggestion or intimation that defendants, the plaintiffs, or the trial court even thought of the presumption of a deed. Having chosen to eliminate the question in the trial court, defendants cannot now have a reveral, because it was not considered. This is a court of review; unless a question has been so presented in the trial court as to call for action by that court, there is no action to review. [Laclede National Bank v. Richardson, 156 Mo. 270; State ex rel. v. Chick, 146 Mo. 645; Walker v. Owen, 79 Mo. 563.]

(b) This case was tried before the court sitting as a jury. Plaintiffs made a prima-facie case when they showed the paper title to be in themselves. If, for argument, it be conceded that the question of the presumption of a deed was mooted below, the burden was upon the defendants to prove the facts upon which the presumption could rest.

No instructions were asked or given upon this branch of the case and from the court’s judgment it is apparent, conceding that the question was in issue, that the court sitting as a jury found that the defendants had not so carried the burden of proof as to justify the court in invoking the presumption. The rule has been firmly established in this State that when a primafacie case is made by plaintiffs, and no instructions are asked or given, the appellate court will not review the evidence for the purpose of determining its sufficiency to overthrow plaintiffs’ case. As typical of the many cases in which this rule has been stated and applied, see Ess v. Bouton, 64 Mo. 105; Bethune v. Railroad, 139 Mo. 574; Zimmerman v. Railroad, 156 Mo. 561. The rule applies with aptness to this branch' of the case at bar.

Defendants’ contention that the court erred in not holding t]iat, as stated by them, “by virtue of the thirty-year statute whatever title plaintiffs had was forfeited and vested in defendants, who were therefore entitled to judgment for the whole of the Miller Tract, as well as the Netherton Tract,” must be ruled against them.

Plaintiffs having made a prima-faeie case of ownership of all of the land, it became necessary for defendants, in order to overthrow that case, to prove that for a period of thirty consecutive years plaintiffs or someone under whom they might claim, had no possession of the land, had paid no taxes thereon, had failed to bring suit within one year thereafter, and that defendants were in lawful possession. It is conceded that neither the plaintiffs nor any person under whom they might claim, ever had possession of any part of the land, and the evidence apparently satisfied the trial court that no taxes had been paid by plaintiffs for the thirty-year period. But it is quite as apparent that the trial court did not find that defendants were in possession of all of the land. Defendants’ evidence tended to prove that they were in possession of all of it, but that they had fenced only the cleared field on the Miller Tract, and they had by that fence joined the cleared field with the fenced clearing on the Netherton Tract where stood their house and barn. It will be borne in mind that at no time did defendants ever have any color of title to the Miller Tract. Possession without color of title is confined to the part actually occupied. [Rannels v. Rannels, 52 Mo. 108.] It was for the trial court to determine from all of the evidence what part of the lands defendants were occupying. The evidence of the defendant’s possession of the whole of the Miller Tract was not such as to justify this court, as a matter of law, in holding that they were in possession of all of it. Upon the evidence reasonable minds might well differ as to whether or not defendants were in possession of any part of the Miller Tract, except the twenty-seven and one-half acres fenced. The question was one of fact. It was determined by the trier 'of fact against defendants, except as to the twenty-seven and one-half acres which defendants had fenced, and except all of the Netherton Tract. There being substantial evidence upon which to base the finding, the authorities in this State are unanimous in holding that this court will not weigh the evidence.

Attending the errors alleged by plaintiffs: Their chief contention is that there was no evidence that plaintiffs, or any person under whom they might claim, had not paid the taxes for thirty con'secutivo years, and that, therefore, there was no evidence to sustain the court’s judgment awarding part of the land to defendants.

The evidence not only shows conclusively that for more than thirty years none of the plaintiffs themselves paid any taxes, but there is direct evidence that the defendants did pay the taxes from 1870 until 1884, and from 1894 until the time of the trial. There is no direct evidence as to who paid the taxes during the ten years from 1884 until 1894. The persons who held the office of county collector during those years had died prior to the trial. Defendants were not limited to direct evidence; the non-payment of taxes'for thirty years may be proved by circumstantial evidence. [Campbell v. Greer, 209 Mo. 199; Land & Imp. Co. v. Epright, 265 Mo. l. c. 217.]

A review of this question by this court is limited to a determination of whether or not the circumstances furnished any substantial evidence^ upon which the court’s finding of non-payment of taxes could be predicated; was there evidence -from which non-payment of taxes could be legally inferred? All of the plaintiffs testified that no taxes were paid by them. There is no evidence that their mother paid such taxes at any time, and she is the only person that plaintiffs have suggested as being likely to have paid them. No witnesses had ever heard her claim any interest in the land; her own daughter who had lived in the vicinity of the land all of her life had never heard of any interest owned by plaintiffs until shortly before suit was filed; she heard of it through the attempted purchase by Mr. Lee Hunter of Clay Dawson’s interest. The inventory of George W. Dawson’s estate shows that if plaintiffs’ mother knew of her husband’s ownership of the land, she failed to include it in the inventory of her husband’s estate. It seems certain that she paid no taxes from 1870 to 1884, and from 1894 to 1909, when she died. The evidence strongly indicates that she either knew nothing or cared nothing about this land. Her interest was surely no greater than that of her four children, who admitted that they had paid no taxes on the land and who had never shown the slightest interest of any character in the land until shortly before this suit was brought.

With the foregoing circumstances in mind, one cannot say that there was no substantial evidence upon which to predicate a finding of the non-payment of taxes during the thirty years.

One other alleged error is pressed by plaintiffs as grounds for reversal.

George W. Dawson left a will by which he devised to his wife for life, remainder to his four children, a one-fifth interest in his real estate, and provided that until she should remarry she should have the right to use and occupy all of his real estate, the residue of which was devised to his four children, plaintiffs in this action. The widow, Laura A. Dawson, remarried in 1867, and died shortly after this suit was brought.

Defendants introduced the following minute from the record of the county court:

“New Madrid County Court, May term, 1863, Thursday, the fourteenth day of the month. Court met pursuant to adjournment. Present the same justices as yesterday.
“1. Now comes Laura Dawson, widow and relict of G. W. Dawson, and by attorney files her renunciation of the provisions of the will of her deceased husband. ’ ’

Proof of the will of George W. Dawson was made .in the county court of New Madrid County on September 16, 1862. On that date, and on May the 14th, 1863, when the foregoing minute was made, the county court was fully possessed of jurisdiction in all probate matters. The provisions of the statute then in force relative to land passing by will in lieu of dower, and for the renunciation, of wills, were contained in sections 15 and 16, chapter 56, Revised Statutes 1855, and were literally the same as the provisions covering those subjects now appearing in Sections 360 and 361, Revised Statutes 1909.

Upon this state of facts, plaintiffs make the contention, as stated by them, that “under the will of George W. Dawson, his widow Laura Dawson, having remarried, was entitled to a life estate in one-fifth of tlie lands, with the remainder to these children. She was alive at the institution of this action; she died before the trial, ... No renunciation was shown in evidence.” Therefore, plaintiffs say, that until the death of Laura A. Dawson, the thirty years’ statute did not begin to run against the remaindermen as to the undivided one-fifth interest devised to her for life.

The county court .was the proper court in which to file renunciation. In order to give validity to the renunciation it was necessary to file it there. The record of the filing was full and complete, Under such circumstances, the minute or docket entry of the county court was admissible as evidence of the fact that a paper writing purporting to be a renunciation was filed on the 14th day of May, 1863. [Philadelphia, Wilmington & Baltimore Railroad v. Howard, 13 How. 307; Arundell v. White, 14 East, 215, 104 Eng. Rep. (Full Reprint) 583.]

Indeed, plaintiffs do not controvert this proposition. Their objection is that while the record may be sufficient to prove the filing of a writing purporting to be a renunciation, it cannot be taken as evidence that the writing was in form, duly executed and acknowledged, /as required by the statute.

This entry was made in open court for the benefit of Mrs. Laura Dawson, in her presence and at her request. It recites' that she did what she was attempting to do.

If Mrs. Dawson were in court asserting some right under the will, the recital in the county court’s records would be competent evidence, as her admission, and sufficient to show prima-facie that she had renounced the will.

“A record may also he admitted in evidence in favor of a stranger, against one of the parties, as containing a solemn admission, or judicial declaration by such party, in regard to a certain fact. But in that case it is admitted not as a judgment conclusively establishing the fact, but as the deliberate declaration or admission of the party himself that the fact was so. It is therefore to be treated according to the principles governing admissions, to which class of evidence it properly belongs.” [1 Greenleaf on Evidence (16 Ed.), sec. 527-a.]

In the case at bar, the plaintiffs, in asserting for their own benefit that their mother had a life estate in one-fifth of the land in controversy, that is, that she did not renounce the will, are in no better position than she would be were she making the assertion.

Furthermore, this record was made forty-eight years before the ease at bar was tried. There is no evidence that at all times the renunciation had not been treated as valid and binding, nor that it had not been acted upon as such. This suit was brought during the mother’s lifetime; she was not made a party; the plaintiffs alleged that they owned the entire estate, both legal and equitable in said real estate, and every parcel thereof. Had plaintiffs not recognized the mother’s renunciation, made almost fifty years before the suit was brought, as good and sufficient, they would have known that, as to her one-fifth life interest, their suit was being prematurely brought. Under such circumstances, and after so long a time has elapsed, the court is justified in presuming that in filing the renunciation the regular and natural order of business was observed. [Long v. The Joplin Mining & Smelting Company, 68 Mo. l. c. 432; Williams v. Mitchell, 112 Mo. l. c. 313.] The judgment is affirmed.

Graves, G. J., and Bond, Walker and Blair, JJ., concur ; Williams and Woodson, JJ., concur in result: Faris, J., did not sit.


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    THE STATE v. ORA LEWIS, alias DeMORRIS, and ROY LEWIS, alias JOE LEWIS, alias DeMORRIS, Appellants.
    Division Two,
    February 26, 1918.
    1. INTENT: Carrying Concealed Weapons: Unarmed Thief. Without further showing, an intent to murder cannot be imputed to a man who unlawfully carries concealed weapons; or to an unarmed thief. But such intent can be imputed to a proven thief who unlawfully carries pistols concealed on his person.
    2. -: -: -: Conspiracy. When two brothers, in daily association, and with the evident knowledge on the part of each that the other is unlawfully armed with concealed weapons, go about their dishonest work of stealing automobiles and valuable copper wire, such facts strongly point to a mutual understanding and conspiracy that their arrest shall be thwarted by killing the officer who attempts it. And the force of such evidence is increased by the fact that each carries his weapon concealed in an unusual place upon his person, to prevent the discovery of the weapons.
    3. -: -: -: -: Killing of Another in Attempt to Escape. And such conspiracy or mutual understanding is further increased by the fact that immediately after one of them had shot the officer who had placed them under arrest, both fled headlong together from the place, concealed themselves in' another garage, and killed another officer who attempted to interrupt them in their attempted escape.
    4. MOTION FOR NEW TRIAL: Assignments: Must Be Specific. If the motion for a new trial in a criminal case only mentions the instructions generally, such as “the court erred in declaring the law of the case,” “the instructions given are a comment on the evidence” and the court omitted to take by proper instruction from the jury’s consideration certain illegal, incompetent, immaterial, irrelevant and improper testimony admitted over the timely objection of defendants,’’ the giving, refusal or failure to give any instruction is not properly before the appellate court for review on appeal, because it does not call attention to any specific proposition. However, in this capital case, in which it is stated in the brief that, because of “the misconduct, lack of skill and incompetency of the attorney who appeared for defendants at the trial,” they were “prejudiced and were prevented from fairly presenting their defense,” so much of the instructions as relate to the material points raised by their counsel are set forth, considered and held to be free from error.
    5. INSTRUCTION: For Murder in Second Degree. An instruction for murder in the second degree is properly refused if there is no evidence on which to base it. In this case it was not error to confine the instructions to murder in the first degree.
    6. -: Reasonable Doubt. The instruction set out in the statement as to a reasonable doubt about any one fact necessary to show guilt, when considered in connection with another instruction concerning the general subject of reasonable doubt, was as favorable to defendants as they have any right to claim.
    7. -: Conspiracy: Contradictory. An instruction to the effect I that there is no evidence' that one of the defendants was present at the scene of the shooting at the time the other shot the officer “for the purpose of aiding or abetting the same, by word or act,” and that “the only ground upon which he could be held legally responsible for said shooting would be that it was done in the execution of a conspiracy or agreement to which he was a party,” was not error, there being positive evidence of the existence of a prior conspiracy to kill in an attempt to escape arrest, and there being no evidence that the shooting was done over the said defendant’s protest.
    8. CAPITAL PUNISHMENT: Reduction in Supreme Court. Where the punishment had been assessed, sentence pronounced, judgment entered and an appeal taken before the Act of 1917 abolishing capital punishment went into effect, the Supreme Court is not authorized by the statutes to reduce the punishment to life imprisonment. [Opinion on Motion to Modify Judgment.]
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Affirmed.

      A. Samuel Bender for appellants.
    (1) Tlie court erred in overruling the defendant’s demurrer to the evidence at the close of the State’s ease, because there was no evidence that the defendant Roy Joe Lewis in any way aided or participated in the killing of McKenna, and because it was not shown that they were conspirators, or that they were engaged in a common design of which the offense was a part. Green v. State, 13 Mo. 382; State v. Walker, 96 Mo. 95. (2) The giving of instructions without evidence upon which to base them is reversible error. State v. Little, 228 Mo. 273; State v. McCaffery, 225 Mo. 617; State v. Clark, 221 Mo. 391; State v. Scott, 172 Mo. 536; State v. Bell, 194 Mo. 264; State v. Harris, 199 Mo. 716; State v. Ware, 62 Mo. 597; State v. Jones, 64 Mo. 391; State v. Little, 67 Mo. 624; State v. Tice, 9 Mo. 112; (3) An instruction which is incomplete and by reason of such conditions becomes a comment upon the evidence, is erroneous, and invades the province of the jury. State v. Evans, 183 S. W. 1059; State v. Eairlamb, 121 Mo. 137; State v. Cook, 84 Mo. 49. (4) It is error for the court to instruct the jury that “if the jury have a reasonable doubt arising from the lack or insufficiency of the evidence, of the existence of any such material fact as to the defendant, the jury will acquit the defendant,” and is erroneous because the.defendant is entitled to an acquittal upon the consideration of all the evidence as presented. State v. Christian, 253 Mo. 382; State v. Cushionberry, 157 Mo. 168; State v. Temple, 194 Mo. 228; State v. Harper, 149 Mo. 514; State v. Maupin, 196 Mo. 174. (5) Evidence of other distinct and disconnected crimes, and which throws no light upon the crime in issue, is inadmissible. State v. Young, 119 Mo. 495; Bank v. Bank, 64 Mo. App. 253; State v. Summers, 26 Mo. 250; State v. Parker, 96 Mo. 382; Swan v. Commonwealth, 104 Pa. 218; People v. Sharp, 107 N. Y. 427; Commonwealth v. Jackson, 132 Mass. 16; People v. Mollineaux, 67 L. R. A. 237; State v. Schmetler, 181* Mo. 173; State v. Harold, 38 Mo. 496; State v. Palmberg, 199 Mo. 233. (6) It is improper conduct on the part of the circuit attorney in his argument to characterize the defendants as savages, and the court’s overruling an objection to such improper argument is erroneous. State v. Young, 99 Mo. 666; State v. Ulrich, 110 Mo. 350; State v. Fischer, 124 Mo. 460. (7) On indictment for murder in first degree, where the evidence is sufficient to' warrant an instruction on murder in second degree, the refusing to give such instruction is error. (8) On indictment for murder, •wherein a police officer is killed while making an arrest, the legality of the arrest is a question for the jury, and the jury should he instructed upon the law if the arrest were legal and upon reasonable ground of suspicion of guilt, and also upon the law if the arrest were unlawful and not based upon reasonable suspicion of guilt. Refusal to give an instruction to this effect is reversible error. Roberts v. State, 14 Mo. 138.

      Frank W. McAllister, Attorney-General, and Henry B, Hunt, Assistant Attorney-General, for the State.
    (1) The court did not err in overruling appellants’ demurrers to the evidence offered at the close of the State’s case. Where there is substantial evidence to support the verdict, a demurrer to the evidence should be overruled. State v. Pollard, 174 Mo. 614; State v. Swain, 239 Mo. 728. (2) Appellant Roy Lewis was properly convicted. He was a conspirator with appellant Ora Lewis and others, in a common scheme or plan to engage in thievery, and resist arrest and punishment therefor. The killing of officers McKenna and Dillon was a part of such common design. State v. Hyde, 234 Mo. 224, 226, 237; State v. Weisman, 238 Mo. 555; State v. Rasco, 239 Mo. 575; State v. Bailey, 190 Mo. 279; State v. Jones, 171 Mo. 407; State v. Mathews, 98 Mo. 129; State v. Balch, 136 Mo. 109. (a) If several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in furtherance of the original design is, in the construction of the law, the act of all. State v. Darling, 216 Mo. 459; State v. Othick, 184 S. W. 108; State v. Bobbitt, 215 Mo. 39. (b) It is not necessary, in proving a conspiracy, to commit a crime to show an express agreement; the conspiracy may be shown by facts and circumstances from which it may be inferred.. State v. Sykes, 191 Mo. 78; State v. Darling, 199 Mo. 199. (3) General assignments complaining of error in the trial court’s giving and refusing instructions, are not sufficiently definite to entitle them to review. The motion for new trial should designate the erroneous instructions by reference to their number or their subject-matter. The motion for new trial in this case contains only general averments as to the giving and refusing of instructions. Sec. 5285, R. S. 1909; State v. Othick, 184 S. W. 108; State v. McBrien, 265 Mo. 604. (a) Appellants made no objection tó the action of the trial court in refusing to give their instructions, and saved no exceptions to the ruling of the court. ■ Hence refused instructions are not reviewable. State v. Morgan, 196 Mo. 184; State v. Jones, 191 Mo. 663. (b) Alleged failure to instruct on murder in the second degree is not made a ground of the motion for new trial. State v. Scott, 214 Mo. 261. (c) Alleged failure to instruct on law of arrest by police officers is not made a ground of motion for new trial. State v. Scott, 214 Mo. 261. (4) The remark of the circuit attorney, complained ;of, is not properly preserved for review. The objection to such remark is as follows: “I object to the remark, of the circuit attorney.” This language does not set forth the grounds of the objection, therefore there is nothing before this court for review upon that matter. State v. Miller, 264 Mo. 407-; State v. Phillips, 233 Mo. 2'99. (5) The request- that this case be reversed' on account of incompetency of trial counsel cannot be considered by this court. Said request is not made onq of the grounds of the motion for new trial. It is raised for the first time in the brief of appellants. State v. Scott, 214 Mo. 261; State v. Dreher, 137 Mo. 23.
   ROY, C.

Defendants were charged by indictment with the murder in the first degree of police officer John F. McKenna. The jury found them both guilty as charged, and fixed their punishment at death. The trial court commuted the defendant Roy Lewis’s punishment to a life term in the penitentiary. They were sentenced accordingly, and have appealed. After the disposal of the ease in the trial court, the defendants discharged the lawyer who had represented them during the trial. Other counsel appears for them in this court, and in his brief herein he says:

“An examination of the facts and a reading of this entire record must convince this court that defendants have been prejudiced and have been prevented from fairly presenting their defense by the misconduct, lack of skill, learning, competency or experience of the attorney who appeared for defendants in the trial court. That such a situation warrants a new trial has been the ruling in many cases.”

Such claim made on behalf of defendants, and the fact that, as to one of them, the punishment is death, call for a critical examination of the whole record.

No evidence was introduced on the part of the defendants on the main issue. In the following statement we shall set out simply as facts those things which the evidence tends to establish.

The killing occurred on April 7, 1916. From the previous January until then the defendants and their brother Frank lived with' their mother and stepfather, Mr. and Mrs. Bubb, at 4251 Athlone Court, St. Louis, Missouri, though the evidence indicates that they, at times, had rooms elsewhere. In the rear of the Athlone home-was a garage on the alley, used by the brothers. For several weeks prior to the killing the defendants had also rented and used a garage on an alley in the rear of 4172 Delmar Avenue. About March 10, 1916, two automobiles, a Ford and a Hudson, were stolen in the city. On the night of April 6th, thereafter, the defendants, their brother Frank, and another, went in those two cars to Mexico, Missouri, where they stole a boy’s bicycle and several hundred dollars’ worth of copper trolley wire. The defendants in the Ford car pulled into the alley near the Delmar garage about half past seven the next morning. At that time Roy was carrying a loaded revolver in a holster which hung in the middle of his back, under his coat. Ora had a similar gun concealed somewhere in his clothes in front of him. Mc-Kenna, on a motorcycle, followed the defendants into the alley, where he arrested and searched them both, taking Roy’s gun from him, but failing to find Ora’s. McKenna took the defendants into an oil-filling station on the alley, and directed the person in charge, George Fisher, Jr., to call the wagon at police headquarters. Fisher called on the telephone, which was in the corner of the room on the wall. The defendants were standing about a foot apart to the left and towards the rear of Fisher. They were facing McKenna, whose attention was attracted for a moment by the arrival of another automobile back of him and just outside the station. As the officer turned to look at the car, Ora pulled his gun and shot the officer, killing him. Fisher turned from the telephone just in time to see the shot, but not in time to see the drawing of the gun. Instantly after the shooting the defendants rushed from the station and attempted to find Frank and the Hudson car, but Frank, who had come into the alley after the arrest and before the killing, on seeing the situation, had scurried away in the Hudson car. The defendants, failing to find their brother, jumped into the Ford car and got away. Soon after eight o’clock that morning the defendants arrived at the garage in the rear of the defendants’ home at Athlone Court, and a few moments after that, Officer "William A. Dillon, who had been notified of the death of McKenna, reached the Athlone garage, in which he found the defendants. He entered that garage and was there killed by these defendants with a hatchet and shovel. The defendants and two others wrapped the dead body in a blanket, loaded it into the Hudson car, took it about five miles into the country, dumped it over the end of a culvert into a deep ravine, and covered it with about six inches of dirt, leaving exposed a protruding foot. On Sunday, April 9th, the .body was discovered. The defendant Roy Lewis was arrested at his home the following night, and Ora was arrested in Kansas City the following September. He was then living under an assumed name.

The State offered to put in evidence a written statement made and signed by defendant Eoy Lewis at police headquarters as to the Idlling of McKenna and Dillon, and also offered to prove an oral statement by Eoy showing a conspiracy of the brothers to kill the police when necessary to make an escape. The preliminary proof as to whether such statements were voluntarily made was taken before the court in the absence of the jury, and consumed several days in the taking. The trial court, in a masterly discussion of the evidence on that question, and of the law and the duty of the court, acquitted the police of any intentional mistreatment of the defendant Eoy in connection with such statements, but held that the evidence showed that the questioning of the defendant was too persistent and too long continued, while he was at times being held ex communicado. The statements were excluded for that reason, the court saying: “I cannot imagine any_ physical torture being quite so severe as the refined torture of keeping a person on edge by continued and repeated examination.”

Defendants objected to the evidence as to the killing of Dillon, on the ground that such killing was another and distinct offense from the one charged, and, for that reason, incompetent. The objection was overruled.

At the close of the State’s case demurrers thereto were offered in behalf of each of the defendants separately. They were both overruled. The court instructed fully on all questions arising in the case. It, however, confined the instructions to murder in the first degree, refusing one on the second degree offered by defendants. Among the instructions are the following:

“SECOND: All persons are equally guilty who act together with a common intent and purpose in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and each so acting. However, the mere presence of a person upon the scene of the shooting and Idlling of another, even though, he mentally approve of what is being done, will not in the absence of some word or act of approval or encouragement make such party guilty of the crime; yet if he he present and by words or actions aid or advise or encourage the shooting, with the intent that the words or acts of encouragement should encourage and abet the crime committed, he will be equally guilty with the person who actually commits the physical deed.
“If, however, several enter into a conspiracy, agreement or common design to commit a felony, then the act of one of them, proceeding according to the common plan, is in law the act of each, and each of them will be held responsible therefor in the law, as though he himself had committed the physical act, and this notwithstanding that he may ha-ve taken no part in the commission of the physical act itself.
“The court further instructs you that there is no evidence in the case which would warrant you in finding that Boy Lewis was present at the scene of the shooting for the purpose of aiding or abetting the same, or that he by word spoken or act committed by him, at the time of the shooting, aided, abetted, or encouraged the same, and the only ground upon which he could be held legally responsible for said shooting would be that it was done in the execution of á conspiracy or agreement to which he was a party.
“THIBD: The court further instructs the jury that if you find from the evidence and beyond a reasonable doubt that defendant Ora Lewis did wilfully, deliberately, premeditatedly and out of his malice aforethought shoot and kill John F. McKenna, in the. manner required to he proven in the preceding instruction in order to convict Ora Lewis, and if you further find from the evidence and beyond a reasonable doubt, that prior to the shooting of said John F. McKenna, the said Ora Lewis and Boy Lewis entered into an agreement or conspiracy with each other, in which it was mutually agreed between them that they would jointly commit acts of larceny, or stealing, and that if ■interrupted in the commission thereof, or apprehended by officers of the police while engaged in the commission of such larceny, or in removing property stolen by them, they would resist or endeavor to escape, and if you believe, that defendant Ora Lewis shot and killed said John F. McKenna, in the prosecution of the objects of said conspiracy (if you find there was such a conspiracy), then defendant Roy Lewis would be equally responsible as defendant Ora Lewis for such shooting and killing, and you should find defendant Roy Lewis guilty of murder in the first degree, and unless you find the facts to be as stated in this instruction you will acquit the defendant Roy Lewis.
“THIRD (A): The court further instructs the jury that if you find and believe from the evidence that the defendants, Ora Lewis and Roy Lewis, had entered into an agreement or conspiracy with each other in which it was agreed between them that they would jointly commit acts of larceny, or stealing, and that if interrupted' in the commission thereof or apprehended by officers of the police while engaged in the commission of such larceny, or in removing the property stolen by them, they would not resist but would endeavor to escape, and that in attempting such escape they and neither of them would kill or do great bodily injury to the officer arresting them, and if you believe that defendant Ora Lewis shot said John F, McKenna and that in doing so he went outside of the common plan and committed an independent act wholly outside of the common design, then you cannot convict defendant Roy Lewis for such shooting, unless you believe that such shooting was the natural and approximate result of carrying out tlieir purpose to escape. If it was the natural and approximate result of carrying out such purpose then the defendant Roy Lewis would be equally guilty with defendant Ora Lewis, even though the shooting and killing of an officer was not actually contemplated in their agreement.
“FOURTH: The court instructs the jury that while it devolves upon the State to prove a conspiracy, such, as is referred to in the preceding instructions, to your satisfaction and beyond a reasonable doubt, yet it need not be proven by direct evidence, but may be deduced from facts and circumstances proven to your satisfaction, provided you can satisfactorily and reasonably infer the existence of such a conspiracy from all the evidence. Before you can find the existence of a conspiracy from circumstantial evidence, you must be satisfied beyond a reasonable doubt not only that all the circumstances proven are, consistent with defendants’ having formed such a conspiracy, but you must also be satisfied that the facts are such as to be inconsistent with any other reasonable conclusion than that the defendants did form such conspiracy. If the facts proven are consistent with any reasonable conclusion that defendants did not form a conspiracy, that is sufficient to raise a reasonable doubt, and in such event you should find that there was no conspiracy or agreement between defendants; and in that event you must acquit defendant Roy Lewis.
“SIXTH: In this case the State has introduced evidence tending to prove the theft of two automobiles, in the month of- March, 1916, some copper wire and a bicycle in the month of April, 1916, all prior to the alleged shooting of John F. McKenna, and also evidence tending to prove the killing of one William A. Dillon in the month of April, 1916, and subsequent to the shooting of sa-id John F. McKenna.
“You are instructed that you can only consider such testimony for the purpose for which it was admitted, namely, that concerning crimes preceding the killing of John F. McKenna was introduced to show a motive and reason for shooting said McKenna, and that concerning the killing of William A. Dillon was admitted as tending to explain the movements of the defendants following the shooting of said John F. McKenna and as tending to show whether they were made in an attempt to flee and avoid arrest and prosecution for said shooting and killing, or were the result of other causes than a consciousness of guilt and a desire to avoid arrest and prosecution.
“The defendants are on trial for the alleged murder of John F. McKenna, and you cannot convict them, ór either of them, in this case, unless you find them, or him as the case- may he, guilty of the charge of murdering said John F. McKenna, even though you should believe that either or both of them are guilty of any or all of the other offenses mentioned in the evidence. ’ ’

The tenth instruction contained the following:

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendants’ guilt, you should acquit; but a doubt to authorize an acquittal on that ground, ought to be a substantial doubt touching the defendants’ guilt, and not a mere possibility of their innocence.”

The eleventh is as follows:

“The court instructs the jury that it devolves upon the State to prove to the jury, beyond a reasonable doubt, every material fact necessary to constitute the offense with which the defendants are charged; and if 'the jury have a reasonable doubt, arising from the lack or insufficiency of the evidence, of the existence of any -such material facts, as to .either defendant, the jury will acquit such defendant.”

Defendants asked a lot of instructions which were refused, but there was no exception to such refusal. During the argument of Mr. McCullen for the State, the following occurred:

“Mr. McCullen: "When we think of this evidence and picture to our minds that scene in that oil station that morning and remember the subsequent events, I think we are not going too far when we say that that evidence shows that when John F. McKenna, the agent of organized society, stood there with these men under arrest, keeping in mind their subsequent actions as disclosed by this evidence, I feel that we may safely say that there in that oil station civilization," personified by John F. McKenna, stood face to face with savagery.
“Mr. Weiss: I object to the remark of'the Circuit Attorney.
“The court overruled the objection. To which ruling of the court defendants, b/ théir counsel, then and there duly excepted and still continue to except.”

The only points made in the motion for a new trial as to the giving, refusing to give, or failing to give, instructions, are as follows:

“4. Because the court erred in incorrectly declaring the law governing the case, in the instructions to the jury.
“5. Because the court erred in misdirecting the jury as to the law governing the case in its instructions to the jury.
“6. Because the court failed to direct the jury in a material matter necessary for their information.
“7. Because the instructions as given by the court are a comment on the evidence.
“8. Because the court omitted to take by a proper instruction in writing from the jury’s consideration certain illegal, incompetent, immaterial, irrelevant and improper testimony introduced by the State and admitted over and against the timely objection of the defendants.
“9. Because the court erred in refusing to give the instructions asked for by defendants at the close of the State’s case.”

I. Appellants raise two points which can be best considered together. It is contended:

1. That there is no evidence showing guilt on the part of Roy Lewis.

2. That the admission of evidence as to the killing of Dillon was error.

In State v. Bailey, 190 Mo. l. c. 280, this court quoted from People v. Molineux, 168 N. Y. 264, as follows:

“Generally speaking, evidence as to other crimes is competent to prove the specific crime when it tends to establish first, motive; second, intent; third, the absence of mistake or accident; fourth, a common scheme or plan embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the others; fifth, the identity of the person .charged with the commission of the crime on trial. ’ ’

We hold that all the evidence in the case, including the circumstances of the killing of Dillon, shows clearly a conspiracy to murder whenever necessary ^ e0-urse of defendants ’ business of stealing. They were in possession of two garages, covers to which they fled when the police were in pursuit. They had two stolen automobiles. They had just returned from an all-night raid upon another city. Each had a gun on his person concealed in an unusual place, Roy’s in the middle of his back, and Ora’s in his clothes in front of him. That shows a purpose and intent on their part that the police should fail to discover the guns. After a rather diligent search, we have failed to find any authority on the question as to whether the carrying of a concealed weapon has, in itself alone, any tendency to prove an intent to take human life. In the absence of such an authority, we will concede that, without further showing, an intent to murder cannot be imputed either to the man who unlawfully carries concealed weapons, or to the unarmed thief. But when those two characters are combined in one, the armed thief, it is like taking two chemicals, each in itself inert, and combining them into a dangerous explosive. It would be doing violence to human reason to say that such a combination does not tend to show an intent to murder when the time comes. Where two brothers, in daily association, and with the evident knowledge on the part of each that the other is so armed, go about their dishonest work, such facts strongly indicate a mutual understanding (conspiracy) that an arrest shall be thwarted by killing the officer. The force of that evidence is increased when the brothers carry their guns, as in this case, in such manner as to prevent, if possible, the discovery of such weapons. Such indication of mutual understanding is further increased in this case, by the fact that upon the crack of the gun both the defendants together fled headlong from the place, slaughtering Dillon who attempted to interrupt them in their mad get-away.

II. Errors, if any, in the giving, or refusal, or failure to give instructions are not properly set out in the motion for a new trial. The motion only meirtions the instructions generally,. and does not call attention to any specific proposition. As a consequence, those points are not before us for review. [State v. Othick, 184 S. W. 106; State v. Rowe, 196 S. W. 7; State v. Selleck, 199 S. W. 129.] However, as this is a capital case, we have set out the instructions so far as we have deemed necessary to cover the material points raised by counsel. We think that the defendants have not suffered in those particulars.

The instruction on murder in the second degree was properly refused, as there was no evidence on •which to base it. [State v. Hopper, 71 Mo. 425; State v. Umble, 115 Mo. 452; State v. Fairlamb, 121 Mo. 137; State v. Wooley, 215 Mo. 620.]

The tenth instruction on the subject of reasonable doubt fully complied with the requirements stated in State v. Christian, 258 Mo. l. c. 397.

The eleventh instruction as to a reasonable doubt about any one fact necessary to show guilt, when considered in connection with the tenth instruction, is' favorable to the defendants, and they have no right to complain.

III. Appellant’s counsel makes several severe criticisms of the instructions, of which the following is a sample:

“I will now proceed with Instruction No. 2'and quote such part of same as I believe is undoubtedly erroneous:
“ ‘The court instructs you that there is no evidence in the case which would warrant you in finding that Roy Joe Lewis was present at the scene of the shooting ^or the purpose of aiding or abetting the same, or that he, by w?ord spoken, or act committed by him, at the time of the shooting, aided or abetted or encouraged the same, and the only ground upon wrhich he could he held legally responsible for said shooting would he that it was done in the execution of a conspiracy or agreement to which he was a party. ’
“This part of Instruction No. 2 virtually tells the jury that even though the defendant Roy Joe Lewis was not present to aid, encourage or abet, he could be held legally responsible as a party to the conspiracy — an almost ludicrously self-evident proposition — that it broadly hinted to the jury that if they found anything in Roy Joe Lewis’s presence there which might he construed to amount to more than hare presence, then they might convict Roy Joe Lewis. The real vice of this instruction'is that it permitted the jury to convict said defendant without requiring them to find that there was a conspiracy in existence. To make it a question for the jury as to whether or not a conspiracy existed, that part of the instruction should have been ended with the words ‘if you find that there was such a conspiracy or agreement, to which' Roy Joe Lewis was such a party.’

That instruction contains just two propositions:

1. It tells the jury that there is no evidence showing that Roy was present for the purpose of aiding in the death of McKenna or that he did so aid. That defendant certainly has no right to complain of that part of the instruction. It is all in his favor.

2. It tells the jury that the only ground on which Roy could he convicted was by showing that he was a party to such conspiracy. “Ludicrous” as it may appear to counsel, if there was such a conspiracy, both defendants were guilty, though one of them at the time had no purpose or intent to aid, and did not aid, in such killing. A conspiracy makes each responsible for the acts of the other clone in the scope of such conspiracy. [State v. Walker, 98 Mo. 95; State v. Vaughan, 200 Mo. l. c. 20.] Qui facit per alium facit per se. The situation would be very'different if there were any evidence showing that such killing was over Roy’s protest. If there had been such protest the conspiracy would have been at an end, and the mutual responsibility would have ceased. But the mere absence of evidence showing participation in act or purpose on the part of Roy at the time of the killing does not amount to a protest or a termination of the conspiracy.

IV. We find that counsel for defendants in the trial court taxed severely, without exhausting, the judicial patience; that he was sometimes discourteous and insulting to opposite counsel and to witnesses. ITe prolonged the cross-examinations often to . a wearisome length. On the other hand, he was vigilant an^ tireless. He, after a prolonged fight, beat the State on the question as to whether the statements of the defendant Roy Lewis should be admitted in evidence. It may be well said that he won the only point there was in the case which the awful facts left it possible for him to win. He did not, in his motion for a new trial, properly raise the points on the giving and refusing of instructions. But the eases cited show that other lawyers, of good standing in the State, have made the same mistake, and this court has not deemed it proper to save their clients from the consequences of such error. The case was fairly presented to the jury by the circuit attorney and his assistant. The trial judge guarded with vigilance the rights of the defendants. We are unable to see that they could have fared any better with different counsel.

The judgment is affirmed.

White, C., concurs.

PER CURIAM: — The foregoing opinion of Roy, C., is adopted as the opinion of the court and it is ordered that the judgment pronounced by the trial court be executed.

All tbe judges concur.

Friday, April 5, 1918, fixed as date of execution.-

ON MOTION OF ORA LEWIS TO MODIFY JUDGMENT.

ROY, C. — Tbis appellant was sentenced to death by the trial court on January 10, 1917.

The Act of April 13, 1917 (Laws 1917, p. 246), provides :

“Section 1. Capital punishment not to- he imposed. From and after the taking effect of this act it shall be unlawful in this State to take human life as a punishment for crime, and no court shall impose capital punishment as a penalty for crime.
“Sec. 2. jRepealing conflicting laws. All acts and parts of acts inconsistent or in conflict with this act are hereby repealed.”

But that statute must be interpreted in connection with other statutes. Our Revised Statutes provide:

“Sec. 8063. Repeal of law not to affect punishment for offense committed while in force. No offense committed, and no fine, penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; but the trial and punishment of all such offenses, and the recovery of such fines, penalties and forfeitures, shall be had, in all respects, as if the provisions had remained in force.”
“See.. 8064. Actions-pending, hotv affected hy repeal of law. No action, plea, prosecution, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal; but the same shall proceed, in all respects, as if such statutory provisions had not been repealed, except that all such proceedings had after the time of taking effect of the Revised Statutes shall be conducted according to the provisions of such statute, and shall be in all respects subject to the provisions thereof, so far as they are applicable.”

Those sections originated in the revision of 1835, p. 385, secs. 37 and 38.

Undoubtedly the Legislature in 1917 had the power to abolish capital punishment as to all offenses whether committed before or after the enactment of the new law, but it did not do so. It must be presumed that the new law was enacted with the intent that-it should take its place alongside of other statutes, and be construed in connection with them. The last quoted sections provide as to the effect of future repealing laws, that they shall not affect the punishment for a previous violation of the statute.

Appellant relies on Section 4920 of our Revised Statutes. That section is, in effect, a repetition of Sections 8063 and 8064 above quoted, but with this proviso:

Provided, that if the penalty or punishment for any offense be reduced or lessened by any alteration of the law creating the offense, such penalty or punishment shall be assessed according to the amendatory law.”

That language certainly does not apply to this case. Here the punishment was assessed, the sentence pronounced and the judgment entered before the enactment of the new law. . The appeal was pending when the new law went into effect.

Under Section 5314 of the statutes, the duty of this court on affirmance, is to direct the execution of the judgment affirmed.

Section 5316 provides that this court on appeal may correct any error of the trial court as to the time or place of imprisonment. It was held in Ex parte Gauss, 223 Mo. 277, a habeas corpus case, that the court did not have, in that proceeding, any power under the last quoted section to correct the judgment below as to errors other than as to the time and place of imprisonment. It follows that, as the sentence and judgment in this case were prior to the going into effect of the new statute, they were correct, and in no way erroneous at the time of their entry, and the new law, when interpreted in connection with, the other statutes referred to, does not affect them in any way.

We think that there is no merit in the motion for a rehearing, or in the motion to transfer to Court in Banc.

White, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


author: GRAVES, J.

text:
    THE STATE ex rel. HENRY E. BROUGHTON v. R. B. OLIVER, Appellant.
    Division One,
    March 4, 1918.
    1. APPELLATE JURISDICTION: Revenue Laws: Benefit Assessment. The laws providing for benefit assessments are “not revenue laws of the State” within the meaning of Section 12 of Article 6 of the Constitution, conferring jurisdiction on the Supreme Court of appeals involving a construction of the revenue laws of the State.
    2. -: -: Meaning. By “revenue laws of the State” in the clause of the Constitution defining appellate jurisdiction is meant those laws by which revenue is raised for purely public governmental functions. They are not the laws whose principal purpose is to furnish means for paying for mere local improvements, such as those authorizing a drainage district to assess benefits on lands therein for the purpose of paying the cost of constructing drains and levees, or such as those authorizing a city to assess the cost of a sidewalk or pavement against the abutting property as a benefit thereto.
    3. -: -: Benefit Assessment: Method of Collection. The fact that the laws providing for special assessments to pay for a local improvement also provide for the collection of those assessments in the same manner and by the same officers as ordinary taxes are collected, does not make the construction of those laws a construction of “the revenue laws of the State.” The mode of collection is but a method of procedure, and if the laws governing the procedure are the same as that prescribed by the revenue laws they simply draw on those laws to the extent of making a complete special assessment law, and the construction must be as if they were a part of the special assessment act.

      Appeal from New Madrid Circuit Court. — Hon. Frank Kelly, Judge.
    Transferred to Springfield Court of Appeals.

      Oliver & Oliver for appellant.

      James R. Brewer and Henry G. Riley, Jr., for respondent.
   GRAVES, J.

This case was certified to this court by the Springfield Court of Appeals on the ground that it involved the construction of the revenue laws of the State. The applicable clause of the Constitution conferring appellate jurisdiction upon this court reads: “in cases involving the construction of the revenue laws of this State.”

The relator is the collector of New Madrid County. By his suit he seeks to enforce a lien upon lands owned by defendant for certain special benefit assessments directed by the county court of that county to be charged against such land to meet the bonded obligation of Drainage District No. 18, which district was organized under the county court statutory provisions for the organization of drainage districts. No constitutional questions are raised, and the amount of the several assessments sought to be .collected does not bring the ease within our jurisdiction. In fact it is certified here solely on the ground that it involves ‘ ‘ the construction of the revenue laws of this State.” Have we jurisdiction?

I. In some two or three cases the Springfield Court of Appeals has ruled that the enforcement of these special benefit assessments does involve “the construction of the revenue laws of this State.” Besides the case at bar, and another one on our present docket, we have had the case of State ex rel. v. Redman, 190 Mo. App. 300, 270 Mo. 465. We assumed jurisdiction in the Redman ease, supra, with this remark: “It is sufficient to say that constitutional questions were duly lodged in the answer. ’ ’ The Court of Appeals certified the case here upon both grounds, and we assumed jurisdiction with the remark above quoted. We thought then (as the writer of the opinion in this court in the Redman case) and think now, that but for the constitutional questions lodged in the Redman case this court would have been without jurisdiction. This for the reason, that laws providing for benefit assessments are not “revenue laws of this State” within the meaning of section 12 of article 6 of the Constitution. These are laws which provide a means of paying for mere local improvements, and should not be classed with the “revenue laws of this State” so as to fix jurisdiction in this court. When we speak of the “revenue laws of this State ” we have reference to those laws by which revenue is raised for purely public governmental functions, and not to laws, the principal purpose of which is to furnish a means of payment of mere local improvements. To illustrate: the State grants power to municipalities to raise revenue, by taxation, with which to run the municipality, and such might be properly denominated a revenue law of this State, but it would hardly do to say that because the State has said to a city that you may improve your streets by means of special benefit assessments, this would make such a law a revenue law of this State within the meaning of the constitutional provision, supra. In drainage district matters the State authorizes the formation of the districts, and further authorizes the assessments of benefits in order to raise money with which to make the improvements, but this does not make such laws “revenue laws of this State” within the constitutional provision aforesaid. If so, then when the State authorizes cities to improve their streets and boulevards by means of special benefit assessments, such laws would likewise be a “revenue law of this State.” Such laws, like the drainage district laws, raise money to be expended for a'gwsi-public purpose, but there is a difference between such laws and the laws which provide for the raising of money for purely public governmental purposes. It is to the latter class that this constitutional provision refers, and it was this we had in mind when we stated in Redman’s case, supra, that the constitutional questions duly lodged in the answer sufficed to fix our jurisdiction in that case.

This court has never viewed special assessment laws in the light of revenue laws, as such laws are usually understood. In the very early case of Egyptian Levee Co. v. Hardin, 27 Mo. l. c. 496, we said: “That provision of our State Constitution, which requires taxation to be proportioned to the value of the property on which it is laid, is only applicable to taxation in its usual, ordinary and received sense, and is therefore limited to taxation for general purposes alone, where the money raised by the tax goes into the state treasury, or the county treasury, or the general fund of some city or town, and is applicable to any purpose to which the legislative body of such State, county or town may choose to apply it; and is not intended to apply to local assessments, where the money raised is to be expended on the property taxed. These local assessments are not necessarily, under our Constitution, apportioned by reference to the value of the property assessed, but may be regulated by the value of the benefit which the improvement, to which the money is devoted, is expected to confer on the proprietor. ’ ’

So too, in Morrison v. Morey, 146 Mo. l. c. 564, speaking of assessments in a levee district, and speaking of a levee district, this court said: “But while it is a public subdivision of the State and not a private corporation, it does not follow that the money to be raised from the landowners to carry out the objects intended, is a tax. It is an assessment which is justified by the benefit, public and private; conferred. The cost of the abatement of nuisances, for the construction of sewers or for the improvement of a street, may be assessed against the property benefited, notwithstanding the public and the owner are both interested. -As a tax it would be unconstitutional, because not uniform (Constitution, sec. 3, art. 10) and because not in proportion to tbe value of the property (Constitution, sec. 4, art. 10) and because it is prohibited by the limitations of section 12 of article 10 of our Constitution, but being an assessment of benefits and in no sense a tax it is a constitutional exercise of the power of the State.”

The writer of the opinion in this case has collated all the previous cases in this State, and they may be seen by a reference to the opinion. The distinction thus drawn between taxes (provided for by the revenue laws of this State) and assessments for benefits (as provided for in levee and drainage district laws) has been consistently followed in all subsequent cases. [Kansas City v. Bacon, 147 Mo. l. c. 282; City of St. Joseph v. Owen, 110 Mo. l. c. 455; Land & Stock Co. v. Miller, 170 Mo. l. c. 252-257; Construction Co. v. Ice Rink Co., 242 Mo. l. c. 255-256; Levee District v. Railroad, 240 Mo. l. c. 632; Drainage District v. Turney, 235 Mo. l. c. 90; State ex rel. v. Drainage District, 269 Mo. l. c. 458.]

In 2 Cooley on Taxation (3 Ed.), page 1154, the distinction between taxes and special assessments is thus clearly drawn: “The distinction between them and ordinary taxation has thus been pointed out in a recent case: ‘A local assessment can Only be levied on land; it cannot, as a tax can, be made a personal liability of the taxpayer; it is an assessment on the thing supposed to be benefited. A tax is levied on the whole State or a known political subdivision, as a county or town. A local assessment is levied on property situated in a district created for the express purpose of the levy, and possessing no other function, or even existence, than to be the thing on which the levy is made. A tax is a continuing burden and must be collected at stated short intervals for all time, and without it government cannot exist; a local assessment is exceptional both as to time and locality — it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected' by and responsible to the community upon which it is imposed: a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the Legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed for the collection of taxes. It is like a tax in that it must be levied for the public purpose, and must be apportioned, by some reasonable rule among those upon whose property it is levied. It is unlike a tax in that the proceeds of the assessment must be expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed.’ Not all these difference are necessarily existent in every case, but in the main the characterization is as accurate as it is forcible.”

When the Constitution speaks of the "revenue laws of this State,” as it does in Section 12 of Article 6, supra, it has reference to that body of laws by which funds for public governmental purposes are raised, and not to that law or body of laws by which .are authorized the assessment of benefits to meet the expenses of given improvements. In other words, the two purposes make up separate schemes: (1) revenues for public governmental purposes, and the assessment, collection, and expenditure thereof, and (2) special assessments and their collection and expenditure. It is to the first class, supra, that the constitutional provision under review applies, and not to the latter.

II. The Court of Appeals seems to bottom its judgment upon the theory that, because the law which provides for special assessments also provides for the collection of such assessments as ordinary taxes are collected, this makes a construction of those laws construction of "the revenue laws of this State” within the meaning of the Constitution. We cannot so view the matter. As shown there are two separate schemes: (1) revenue laws proper, and (2) special assessment laws. The mode of collection is hut a method of procedure, and when that scheme, of laws relative to special assessments provides for their collection as taxes are collected, such provision in the special assessment law just draws unto that law a method of procedure, so as to make it a completé law, and when such procedure is thus drawn to and made a part of the special assessment law, the construction of the procedure must he as if a part of the special assessment act, and not as if a part of the general revenue act. So that if the special assessment acts do not fall within the constitutional provision without the procedure portion, they should not he said to fall within the constitutional provision, simply because by express provision they have drawn unto themselves a method of procedure found in the general revenue laws.

It follows that this court is without jurisdiction in this case, and the cause should be re-transferred to the Springfield Court of Appeals for final disposition.

All concur, except Bond, P. J., absent.