author: BLAIR, C. PER CURIAM.

text:
    THE STATE ex rel. WELCH et al. v. J. R. MORRISON et al., Appellants.
    Division Two,
    June 20, 1912.
    1. EXECUTORS AND ADMINISTRATORS: Indebtedness to Estate: Liability of Bondsmen. Debts due from solvent executors to .tbeir testator axe assets in tbeir hands for which they are jointly liable upon their joint bond, and, their testamentary letters having been revoked, the administrator de bonis non may sue on that bond for any such assets in their hands for which they have failed to account.
    2. -: -: -: Sureties. The liability of a surety on an executor’s bond for debts due from the executor to the testator, for which the executor has failed to account, is the same as that of the principal.
    3. -: -: i-: Administrator de Bonis Non: Action on Predecessor’s Bond: Settlement. Under the Missouri statutes an administrator de bonis non can maintain an action on his predecessor’s bond for assets in his hands for which he has failed to account, whether or not the displaced executor or administrator has made settlement showing a balance in his hands, and the action may be instituted in the circuit court or summary proceedings pursued in the probate court.

      4. -: Bond: Void Provision in Will. A bond taken to secure the carrying out of the valid portions of a will is not void because some separable provision in the will is void.
    5. —--: -: -: Ignored. The probate court, the executors in making their bond, and the circuit court in the trial of this action upon that bond, did right in ignoring a void provision in the will designed to overturn the administration .statutes.
    6. WILL: Void Provision: No Conflict. A void provision in a will cannot be said to conflict -with anything.
    7. EXECUTORS AND ADMINISTRATORS: Bond: Execution? Liability of Sureties. The sureties upon an executor’s bond are not relieved of their liability because the bond was not signed in the presence of the probate judge (Sec. 29, R. S. 1909).
    8. -: Action on Bond: Limitations. Where a surety upon an executors’ bond dies, and afterward the executors’ letters are revoked, the limitation is seven years against an action upon the executors’ bond brought by administratrices de bonis non against the administrator of the surety, and the statute began to run when the executors’ letters were revoked, and not (the liability on the bond being contingent) at the time of the publication of notice of letters issued on the surety’s estate.
    9. -: -: Defenses. An averment in the answ.er of a surety upon a bond that another name was added as surety after he signed, and that that name was forged, should be stricken out, where there was no allegation that the name was signed after delivery, or that the surety so. answering signed on an agreement or even on the anticipation that the second name was to be added, or that the approving officer was aware of the forgery.
    10. -: -: Indebtedness to Estate: Insolvency: Evidence. In a suit upon an executors’ bond it was not error to exclude evidence that two of the executors were insolvent two and one-half years and more after they took charge of the estate, there being no showing that conditions in later years were substantially like those at the time the executors took charge of the estate.
    11. -: -: -: Account Recoverable. In a suit upon an executors’ bond for assets consisting of notes due from the executors to their testator for which they failed to account, a verdict is not excessive which is for a sum appreciably less than the amount due on the notes at the time the executors took charge of the estate, plus six per cent simple interest to the time of the revocation of the executors’ letters.
    12. -: -: -: -: Error in Verdict: How Corrected. An error in a verdict arising from an incorrect computation of interest which renders the amount greater even than that prayed for, can be corrected by the Supreme Court or by the trial court under directions.
    13. -: -: -: -: Defenses: Pendency of Prior Action: Pleading. An attempt, in the answer to an action upon an executors’ bond, to set up the pendency of a prior action, should be stricken out by the trial court, where it was not averred when the action had been commenced or whether the plaintiffs in this case were plaintiffs or defendants in the other or that any of the parties to that action, except the plaintiffs, were parties to this, and it did appear that the prior action was not a suit on the bond sued on in this case.
    14. INSTRUCTIONS: Assumption of Disputed Fact. An instruction purporting to cover a count and authorize a verdict on recited facts, is erroneous if it assume a vital and disputed fact.
    15. -; Within Law and Evidence. An instruction must be within the purview of both the pleadings and the evidence.
    16. -: Assuming F^cts. An instruction in a suit upon an executors’ bond is erroneous if it assume the genuineness of the signature of a defendant surety who has pleaded non est factum to the action, thus putting in issue the genuineness of his signature and giving rise to the real issue in the case.
    Appeal from Bates Circuit Court. — Hon. G. A. Denton, Judge.
    Affirmed in fart-, reversed in fart.

      M. S. Horn and Silvers & Silvers for appellants.
    The will of J. J. Ryan which withdrew the administration of his estate from the probate court of Bates county was against public policy. 9 Cyc. 510; Noise v. Marsh, 123 Mass. 286; Conner v. Draker, 1 Ohio St. 166; Trust Co. v. Oreen Cove Springs, 139 U. S. 137; Steamboat Co. v. Salvage Co., 123 TJ. S. 40; Doyle v. Ins. Co., 94 U. S. 535; Ins. Co. v. Morse, 20 Wall. 445; Trott v. Ins. Co., 1 Cliff. 439; King v. Howard, 27 Mo. 21; Tyler v. Larimore, 19 Mo. App. 454. When a will is against public policy the same cannot be enforced. 30 Am. and Eng. • Ency. Law (2 Ed.), p. 612; Schouler on Wills, sec. 22. In business transac-; tions, any violation of the statutes of the State is unlawful, and therefore a will that provides that an es- „ tate shall be administered contrary to the laws of a State cannot be enforced. Brooks v. Cooper, 35 Am. St. Rep. 793; Brooks v. Cooper, 50 N. J. Eq. 761; Buckley, v. Humason, 36 Am. St. Rep. 637; Elliott v. Chamberlain, 48 Am. St. Rep. 327; Porter v. Jones, 52 Mo. 399; Bowers v. Bowers, 26 Pa. St. 74. An administrator de bonis non can sue his predecessor and sureties on the bond for assets not turned over to him, but not for failure to collect debts. R. S. 1889 and 1899, sec. 54; Waterman v. Dockray, 78 Me. 141; Hodge v. Hodge, 90 Me. 505; Meservey v. Kalloch, 53 Atl. 876; Court of Probate v. Smith, 17 Atl. 56; Brice v. Taylor, 9 S. W. 854; U. S. v. Walker, 109 U. S. 258; Beard v. Roth, 35 Fed. 397; Potts v. Smith, 24 Am. Dec. 359; State v. Rottiken, 34 Ark. 144; Rowan v. Kirkpatrick, 14 111. 1; Brownlee v. Lockwood, 20 N. J. 239; Johnson v. Hogan, 37 Tex. 77; Rives v. Patty, 43 Miss. 338; Beall v. New Mexico, 16 Wall. 535. The bond to be valid should have been signed in the presence of the probate court or the judge or clerk thereof or acknowledged before some one authorized to take acknowledgments of deeds. R. S. 1889, sec. 21; R. S. 1899, sec. 27; State v. Owen, 206 Mo. 573; State v. Woodard, 159 Mo. 680; State v. Crosswhite, 195 Mo. 1; Commonwealth v. Hickey, 172 Pa. St. 39; State v. Pratt, 148 Mo. 402; State v. Caldwell, 124 Mo. 509. Where an executor is insolvent when appointed, and remains insolvent during his administration, and up to the time of his discharge, his bondsmen are. not liable for his individual debts to the estate. McCarty v. Frazer, 62 Mo. 263; Houck v. Anderson, 61 L. R. A. 315; In re Walker, 125 Cal. 242; Bascus v. Stover, 89 N. T. 1; Bascus v. Stover, 107 N. T. 624; In re Georgi, 21 Mise. 419; Kader v. Teargin, 85 Teiin. 486; State ex rel. McLamrock v. George, 119 Ind. 503; Condit v. Winslow, 106 Ind. 142. This suit was in part to collect debts that the executors, F. J. Tygard and J. 0. Clark owed the deceased. If the executors were solvent when they took charge of the estate and after-wards became insolvent, then the bondsmen would be liable for the part of the debts that could have been collected before the executors became insolvent. They would not be liable for interest accruing on debts after such insolvency. The court should have permitted the securities to show the insolvency after 1900, and between 1900 and the date of trial, February 19, 1908. The verdict of the jury was excessive and for this reason should have been set aside because the jury charged the bondsmen with interest on each and every count after the estate had been turned over to P, II. Holcomb and plaintiffs. There was no evidence showing that the money which Tygard and Clark owed Eyan at the time of his death could have been loaned by the executors at interest if the same had been collected. The instructions based on this theory and which authorized the jury to assess interest on these various sums should not have been given, as instructions should be based on facts in evidence. This proposition needs the citation of no authorities to support it. Instruction 2 should not have been given. Motor v. Eeed, 6 Mo. 64; Kries v. Land Co., 121 Mo. App. 191; E. S. 1909, secs. 55, 56, 57 and 58. The heirs or distributees can and should bring any action for maladministration, even though the estate be not finally settled. State ex rel. v. Dickson, 213 Mo. 66. Isaac N. Mains, one of the bondsmen, having died and letters testamentary having been published more than two years before any action was commenced by the plaintiffs against E. A. Bennett as administrator; and it appearing clearly that if there was any breach of the bond it occurred during the lifetime of said Mains, the court erred in not giving a peremptory instruction in favor of E. A. Bennett, administrator. The judgment should be reversed because the petition states no cause of action against the sureties. This is an action founded upon a bond. It is against the sureties on that bond. The liabilities of the sureties must be determined by the terms of the bond alone. The surety is bound only in the manner and under the circumstances named in the bond. County v, Salmon, 201 Mo. 136; Martin v. Whites, 128 Mo. App. 117. Acts prescribed by the will outside of the course of a statutory administration are not covered by a statutory executor’s bond, and the sureties are not liable for anything outside such an administration unless the bond specifically so states. 18 Cyc. 1260; Armstrong v. Martin, 18 N. C. 397; Prescott v. Pitts, 9 Mass. 376; Carter v. Young, 9 Lea (Tenn.), 210; State ex rel. v. Anthony, 30 Mo. App. 638; Devore v. Pitman, 3 Mo. 182.

      Thomas J. Smith for respondent.
    (1) It may be conceded that paragraph 12 of the will of testator, Ryan, is void as being in contravention of the provisions of our statute on administration. This paragraph, however, is an independent paragraph, and the remaining portions of the will,are in no way affected by its provision. The plaintiffs in the case claim no rights by virtue of the provisions of this paragraph. It may be rejected without affecting the other paragraphs of the will. Southworth v. Southworth, 173 Mo. 59; Sevier v. Woodson, 205 Mo. 202. (2) The plaintiffs as administratrices de bonis non with the will annexed may maintain this action. They are, indeed, the only persons who could maintain the action. Under the fifth and ninth paragraphs of the testator’s will, all of the beneficiaries in said will being still alive, the trust created thereby continued and no one, save those legally charged with the execution of the will could maintain this action. R. S. 1889, sec. 54; R. S. 1909, sec. 62; State ex rel. v. Poster, 9 Mo. 356; State ex rel. v. Hunter, 15 Mo. 490;. State ex rel. v. Flynn, 48 Mo. 413; Booker v. Armstrong, 93 Mo. 49; State ex rel. v. Dulle, 45 Mo. 272; State ex rel. v. Heinrichs, 82 Mo. 547; Francisco v. Wingfield, 161 Mo. 555; Rozelle v. Harmon, 29 Mo. App. 581; Rozelle v. Harmon, 103 Mo. 342; Tetterington v. Hooker, 58 Mo. 597; Scott v. Royston, 223 Mo. 586; Potts v. Smith, 24 Am. Dec. 385. (3) The provisions of Sec. 21, R. S. 1889, being Sec. 29, R. S. 1909, as to the duties of the probate court, judge or clerk thereof in the matter of taking bonds required therein are directory only and made only for the benefit of the estates to be administered, and failure of the court, judge or clerk to strictly comply with the provisions <of this statute will not render void a bond otherwise valid. Henry v. State, 9 Mo. 778; Court v. Sparks, 10 Mo. 83; James v. Dixon, 21 Mo. 538; State v. Farmer, 54 Mo. 444; Brown v. Weatherby, 71 Mo. 155; State ex rel. v. Railroad, 113 Mo. 308; Paving Co. v. McManus, 144 Mo. App. 608. Court records valid though not signed as required. Platt v. Marshall, 10 Mo. 347; Fontaine v. Hudson, 93 Mo. 69. Collectors bond though not approved valid. Moore v. State, 9 Mo. 334; State ex rel. v. Findley, 101 Mo. 373. Likewise as to constable’s bond. Jones v. State, 7 Mo. 81. (4) If F. J. Tygard and J. C. Clark were solvent at the time they took charge of this estate in 1898, and the executors failed to collect their indebtedness to this estate, their subsequent insolvency would be no defense. The burden being on the defendants to show these debts could not have been collected after the executors took charge, that burden would not have been sustained by introducing evidence tending to show that' two years thereafter they were insolvent. Williams v. Petticrew, 62 Mo. 471; Booker v. Armstrong, 93 Mo. 59. The mere insolvency of either or both of these parties would not have excused the executors from collecting these debts if they could have been collected by reasonable diligence. Young v. Thrasher, 48 Mo. App. 333; In re Mfg. Co., 164 Mo. 333. (5) The verdict was not excessive. McCarty v. O’Bryan, 137 Mo. 590; McClintock v. Bank, 120 Mo. 127; Williams v. Railroad, 112 Mo.- 463; Sweet v. Manpin, 65 Mo. 65; Lynch v. Railroad, 208 Mo. 42. (6) Instruction 2, complained of, was proper, since it is presumed until the contrary is shown that not only public officials, but all others, do their duty as required by law. Lenox v. Harrison, 88 Mo. 496; Long v. M. & S. Co., 68 Mo. 430; Mathias v. O’Neil, 94 Mo. 528; Agan v. Shannon,1 103 Mo. 665; Boynton v. Miller, 144 Mo. 687; McCallister v. Ross, 155 Mo. 94; Roe v. Bank, 167 Mo. 424. (7) The surety, I. N. Mains, having died while the principals on the bond were still executors,, no cause of action accrued to the plaintiffs in this case until after the removal of the executors. Until they were removed and then failed to properly account, no cause of action arose in favor of any one. This occurred in February, 1907, and the action was brought in September next following.
   BLAIR, C.

Letters testamentary on the estate of J. J. Ryan having been granted to Tygard, Clark and Morrison and afterward revoked, this action on their bond was begun on the relation of the administratrices d. b. n. c. t. a. Fifteen of the sixteen counts of the petition which survived demurrers to the evidence and the verdict of the jury are founded on the failure of the executors to pay over and account for various sums represented by certain notes executed by Tygard and Clark, or one of them, to J. J. Ryan before his death. The other of the sixteen counts had its origin in an agreement of Tygard with Ryan to buy in certain land .under a trust deed and thereby protect indebtedness due Ryan and a bank of which Tygard was president, Clark cashier and Morrison bookkeeper. The purchase was made but the agreement was violated. There was evidence pro and con as to the solvency of the executors at the time they took charge of the estate and thereafter and that question was submitted to the jury. Appellant Edwards and appellant Bennett’s intestate, Mains, were sureties on the bond. Several defenses were interposed which will be considered in the course of the opinion.

I. The right of the administratrices de bonis ■non to sue on the bond to recover for the breaches alleged is challenged but must be sustained. The jury found the executors solvent when they took charge of the estate and thereafter and that finding is now conclusive. Being solvent then the indebtedness due from the executors to the estate constituted assets in their hands (Sec. 108, R. S. 1909; McCarty v. Frazer, 62 Mo. 263) for which they were jointly liable, having given a joint bond. Their solvency and the indebtedness of Tygard and Clark being, for present purposes, established by the verdict, and such indebtedness, in consequence, being assets in their hands, there is no good reason for distinguishing between such assets and any others which came into their possession. The liability of the surety is the same as that of the principal. [Bassett v. Deposit Co., 184 Mass. l. c. 213, et seq.] It is settled law in this State that an administrator de bonis non may sue on the bond of his predecessor for assets in his hands for which he has failed to account. [State to use v. Hunter, 15 Mo. 490; State to use v. Porter, 9 Mo. 352; State to use v. Price and Lusk, 17 Mo. 431; State ex rel. v. Dulle, 45 Mo. 269; Scott v. Crews, 72 Mo. 261; State to use v. Fulton, 35 Mo. 323; State to use v. Flynn, 48 Mo. l. c. 416, 417.] These cases (See Seymour v. Seymour, 67 Mo., l. c. 305, 306) also settle the rule that, under our statutes, such action can be maintained whether or not the displaced executor or administrator has made settlement showing a balance in his hands and, also, that the action may be instituted in the circuit court or summary proceedings pursued in the prohate court. The cases cited to the contrary announce common law rules but the common law system has been superseded by our statutes. [Titterington v. Hooker. 58 Mo. l. c. 597, 598.]

2. The attempt of the testator, by provision in his will, to “overturn the statutes of the State upon the subject of administration of estates” proved fruitless as like provisions in wills have heretofore done (Sevier v. Woodson, 205 Mo. l. c. 217) but it by no means follows that the bond, taken despite that void provision, is invalid. Many cases are cited which point out the invalidity of contracts, clauses in wills, etc., which come into collision with public policy, but these do not authorize the conclusion that a bond taken to secure the carrying out of the valid portions of a will is void because some separable provision in the instrument is void.

The provision mentioned was ignored by the probate court, by the executors in executing the bond and by the circuit court on the trial. All were right. [Southworth v. Southworth, 173 Mo. l. c. 71, 72.] Nor is there any conflict between the will and the bond. The provision mentioned being void cannot be said to conflict with anything.

3. That part of the answer which averred, as a complete defense, that the bond was not signed in the presence of the probate judge, etc. (Sec. 29, R. S. 1909), was stricken out and that ruling is assigned for error.

It is contended that the requirement of the section upon which this paragraph of the answer was based is mandatory and that a failure to comply with it exonerates the sureties.

This 'court has held that failure to approve a bond does not relieve the sureties thereon from liability (Jones v. State, 7 Mo. l. c. 85) and has applied this rule to bonds of executors and administrators. [Henry v. State, 9 Mo. 769; James v. Dixon, 21 Mo. l. c. 539, 540; State to use v. Farmer, 54 Mo. l. c. 444, 445.] It was also held that the statute prohibiting the acceptance of an attorney-at-law as surety on an administrator’s bond, though mandatory in form, is directory in fact and that an attorney having signed such a bond as surety could not rely upon the statute to relieve him of his undertaking; the court saying the provision “was not designed to avoid the obligation where the law has been disregarded.” [Hicks v. Chouteau, 12 Mo. l. c. 343.]

Edwards’ plea of non est factum is to be disregarded in considering the question presented by the ruling mentioned, the insistence on this phase of the case being that despite his signing the bond, assuming he did so, if it appears he did not sign in the presence of one of the' persons designated by section 29 he is not liable.

The language of the section is mandatory in form: “and said bond shall be signed in the presence of the court, judge, clerk or acknowledged before some officer,” etc.

i The purpose of requiring bond at all is to protect creditors and distributees and all the provisions of the statute as to the formalities to- be observed are designed to add to their security. Undoubtedly they would have the right to insist upon compliance with these provisions, but is the surety who has signed an executor’s bond (which has been presented to the probate court, approved, filed and recorded by it) after the executor has mismanaged the estate exonerated by reason of the probate judge having omitted one of his duties with respect to the manner of taking the bond? The statute does not declare that a failure of the surety to sign in the presence of one of the'persons designated shall render the bond invalid or relieve the surety of liability. Such failure neither enlarges nor diminishes the liability expressed on the face of the bond. No advantage would seem to accrue to the surety from compliance with the- statute which he would not otherwise enjoy. The bond is the essential thing. This appears from both the language and the purpose of the statute. One of the real designs is to ■protect those who, by reason of immaturity and inexperience, are in many instances incapable of protecting themselves. To attach to the error, the misprision (State ex rel. v. Co. Ct., 41 Mo. l. c. 251, 252), , of the probate judge such serious consequences as urged would tend rather to defeat than effectuate the legislative purpose. From the cases cited it appears that failure to approve, though approval be required, does not invalidate a bond unless the statute provides that such shall be the result. This principle goes far toward warranting a like conclusion with respect to the requirement under consideration. The thing directed to be done is not “the essence of the thing required” for the essence of the thing required is the bond and the protection it affords.

An administrator or executor is a quasi-public officer (Mechem’s Public Officers, sec. 840) and with respect to public officers the same author points out (Sec. 269) that the fact the “bond is not taken by the proper persons or in the prescribed manner, or that it was not approved, or was not approved by the designated officer; or that it was not signed or acknowledged in the presence of a pcirticular officer, or that it was given before the time specified, or not until the time fixed had expired, or was not stamped as required, 'or that the officer who gave it had not been sworn, is immaterial, and the bond, if otherwise perfect, will be enforced.”

So far as concerns the approval of an administrator’s or executor’s bond this court has applied the identical rule applicable in the case of an officer (James v. Dixon, supra) as the case there cited discloses. There is no single, settled rule, applicable in all cases. by which the character of a statute with respect to its being mandatory or directory is to be determined. “In reáson, we may say, that the interpretation will be adopted which will best subserve justice and the true legislative intent.” [Bishop on Written Laws, Sec. 255.] Undoubtedly the Legislature did not intend any of the provisions of section 29, Revised Statutes 1909, to be disobeyed, but it did not prescribe the consequences, so far as the sureties and beneficiaries are concerned, which should follow disobedience. In such circumstances the courts must, of necessity, determine what such consequences are. The probate judge may be liable for his neglect of duty (Sec. 4064, R. S. 1909) though that duty be imposed by a statute directory in nature when examined from another viewpoint and the fact that such liability may ensue does not necessitate a conclusion that the statute is mandatory in the sense contended for by appellant in this case. [Bishop on Written Laws, sec. 256.]

“When a party gives a bond that he may have some privilege or right, as an office, appeal, supersedeas, or the like, and he has the benefit as upon having given the bond required by law, he cannot afterwards avoid responsibility upon it because he has departed in some particular from the statutory form, or omitted some formality in execution, approval or filing. An appeal bond filed without a required justification of sureties is nevertheless good, and will support the appeal, if the sureties are in fact sufficient. The provision of the statute requiring a justification is so far directory where no different intention is manifest.” [Lewis’s Sutherland on Stat. Const., sec. 626; State v. Winfree, 12 La. Ann. l. c. 645; Bloomfield, Governor, v. Ash, 4 N. J. L. 315.]

On the whole the statute seems designed rather, by the required observance, to add to the security of creditors and distributees than to destroy that security in case of its non-observance (Mowbray v. State ex rel., 88 Ind. l. c. 326) and the Legislature having-failed to declare or indicate the effect, on the bond, of non-observance, we must declare it, and we think the provision should be to that extent held directory. The action of the trial court in striking out that part of the answer which proceeded on a different theory was not erroneous.

Decisions of this court in suits on recognizances in criminal cases are cited (State v. Pratt, 148 Mo. 402; State v. Woodward, 159 Mo. 680; State v. Crosswhite, 195 Mo. 1) in support of the contention that a failure of the executors and sureties to sign in open court or in the presence of the probate judge or other person designated in section 29, Revised Statutes 1909, renders executors’ bonds wholly void. The sections of the statutes upon which those cases were decided differ markedly, with respect to the requirement now being considered, from the section involved in this case. Besides, the term recognizance itself implies the personal appearance of the principal and • his sureties before the officer taking bail. A recognizance need not, be signed at all unless the statute requires it and the fact that the statute may require signatures in given cases does not amend the nature of the thing itself and avoid the necessity of appearance before the officer. The theory of such a transaction is that the giving of a recognizance in a criminal case transfers the accused from the custody of the law to the more friendly custody of his sureties — thus in a sense keeping- him in uninterrupted restraint. Conferring power on a sheriff to take a recognizance in specified circumstances, leaves him under the necessity of taking a recognizance and taking- it in the customary way except in so far as the statute affirmatively or by necessary implication changes the method. The fact that the officer is authorized to take a recognizance in the form of a writing obligatory signed by the principal and his sureties does not warrant his omitting another essential element qf a recognizance, to-wit, the appearance of the sureties before the officer, his authority .being wholly statutory. The very definition of the words originally implied appearance — an oral acknowledgment of an obligation. [State v. McGuire, 42 Minn. l. c. 28, 29; Colvig v. County, 16 Or. l. c. 248, 249; 1 Chitty, Cr., Law, p. 92, 93; 3 Blackstone’s Com., chap. 22; 2 Id., p. 341, 342.] For these reasons the cases cited are not in point on the question before us.

4. The trial court was right in striking out that part of the answer of Bennett, administrator of Mains, setting up the two year limitation (Sec. 191, R. S. 1909) upon the presentation of demands against estates. This suit was upon the bond of the prior executors, brought by administratrices de bonis non, and the limitation fixed by special statute (Sec. 63, R. S. 1909) is seven years. The right of action, as appears from that section, accrued upon the revocation of the executors’ letters, which occurred but a short time prior to the institution of this suit and subsequent to the death of Mains. In the circumstances, the liability under the bond being contingent, the statute did'not begin to run at the time of the publication of notice of letters issued on the Mains’ estate. [Binz v. Hyatt, 200 Mo. l. c. 308, 309, and cases ciited.] The cause of action under the pleaded and conceded facts was not barred. [McWilliams v. Norfleet, 60 Miss. l. c. 987, 996.]

5. The action of the trial court in striking from the answer of Bennett, administrator of Mains, the averment that after Mains signed Edwardses name, as surety, was added to the bond without Mains’s knowledge, and another separate averment that Edwards’s name was forged, was not. erroneous. The two were inconsistent, in the first place (Nelson v. Brodhack, 44 Mo. l. c. 598, 599) and had each constituted a defense an election could have been required. Neither paragraph, however, pleaded facts sufficient to constitute a defense. There was no allegation that Edwards signed after delivery and consequently the averment did not negative the presumption that the principals had implied authority to secure other sureties before delivery. [Brey v. Hagan, 110 Ky. 566; Ward v. Hackett, 30 Minn. 152; Graham v. Rush, 73 Iowa, 451; Anderson v. Bellenger, 87 Ala. 334; Berryman v. Manker, 56 Iowa, 150; Hall’s Admx. v. McHenry, 19 Iowa, 521; State v. Paxton, 65 Neb. 130, 131; Lewiston v. Gagne, 89 Me. 395, 399.]

With respect to the alleged forgery of Edwards’s name as surety, after Mains signed the bond, there is no averment that Mains signed on an agreement or even on the anticipation that Edwards was to sign,, nor that the approving officer was aware of the forgery. [State ex rel. v. Hewitt, 72 Mo. 603 and cases cited.]

6. There was no error in excluding evidence tending to show Tygard’s and Clark’s insolvency two and one-half years and more after they and Morrison took charge of the estate. The general rule is that presumptions “do not run backward” and there is nothing exceptional in this respect, in this case. Proof of insolvency in 1901 would not, of itself, raise any presumption of insolvency in 1898 under the facts of this case, if it could in any. It is true that it has been said evidence of the existence of a given condition at a subsequent time might be admissible, though insufficient to afford a basis for a presumption. In admitting such evidence, however, trial courts are necessarily vested with a wide discretion which the court did not exercise in this case to defendants’ prejudice,, having permitted the evidence to range through nearly two and one-half years (State v. Ellis, 138 Wis. l. c. 524, 525; Railroad v. Vaughan, 111 Va. l. c. 791; Corbin v. U. S., 181 Fed. l. c. 304; Windhaus v. Bootz, 92 Cal. l. c. 621; 1 Elliott on Evidence, sec. 110), and there being no showing that conditions in later years were substantially like those at the time the executors took charge of the estate. [Campbell v. Park, 128 Ia. l. c. 187; State v. Cadwell, 79 Ia. l. c. 438.]

7. So far as concerns the contention that the verdicts on counts fourteen to twenty-seven, inclusive, are excessive it is only necessary to say that on each of these counts the verdict is for a sum- appreciably less than the amount due on the note, which forms the basis of the count, a4 the time the executors took charge of the estate, plus six per cent simple interest thereon to the time of the revocation of letters. These counts are all founded on notes due from one or more of the executors to Ryan in his lifetime and their amounts became assets in the executors’ hands when they took charge of the estate, the jury having found the executors then solvent. Their subsequent insolvency during the time the estate was in their hands is of no consequence, since by reason of their indebtedness and their solvency at the time they took charge of the estate the law operated to make the indebtedness assets in their hands (Wachsmuth v. Ins. Co., 241 Ill. l. c. 414), and will treat it as paid “as between the administrator and those beneficially interested in the estate, ’ ’ though not so treating- it under some circumstances; for instance, when the lien of a mortgage would thereby be affected. [Stewart v. Hurd, 78 Atl. l. c. 841.] The executors being solvent, according to the verdict, and never having charged themselves with the amount of the notes or accounted for their proceeds in any way, they and their sureties on the bond are liable for at least the amount of interest included-in the verdicts on the counts mentioned. Whether they be held to have converted the money, or be treated as borrowers (in view of the direction in the will to invest) or the notes be treated as unextinguished, as a basis for the computation of interest, until actual payment, the amounts allowed are not excessive. [In re estate of Camp, 6 Mo. App. 563; Williams, Adm’r v. Petticrew, 62 Mo. l. c. 472; In re Davis, 62 Mo. 450; Julian v. Wrightsman, 73 Mo. l. c. 572; Garesche, Adm’r v. Priest, 9 Mo. App. l. c. 274; Id., 78 Mo. 126; Henry v. State, 9 Mo. 769.] In fact the statute (Sec. 231, R. S. 1909) requires the payment by the executor of interest on any funds of the estate he uses for his own purposes and this statute is mandatory. [Wolfort v. Reilly, 133 Mo. 467.]

It is not intended, by what has been said, to decide that the allowance of interest must be limited to the time of revocation of letters or can always be allowed continuously to such time, but merely that the allowance in this ease apparently having been so limited was not excessive. Nor was the rate excessive under any rule. The .authorities authorize the allowance of interest in cases analogous to this. [Rodenbach’s Appeal, 102 Pa. St. 572; Koon v. Munro, 11 S. C. l. c. 157; Webb’s Heirs v. Webb’s Admr., 22 Ky. 168; Clark’s Appeal, 2 Watts (Pa.), 405; Terhune v. Oldis, 44 N. J. Eq. l. c. 152, 153; In re Davis, 75 N. Y. Supp. 493; Heirs of Sharp v. Kleinpeter, 7 La. Arm. l. c. 267; In re Boyer, 105 N. Y. Supp. 857; In re Clark, 11 N. Y. Supp. 911, 912; Phillips v. Duckett, 112 Ill. App. l. c. 591; Gfood’s Appeal, 150 Pa. St. l. c. 306, 307; Com. ex rel. v. Bracken et al., 32 S. W. 609; 2 Woerner’s Am. Law of Administration, sec. 512; Dyer v. Jacoway, 50 Ark. 217; St. Paul Trust Co. v. Kittson, 62 Minn. l. c. 414, et seq.; Ackerman’s Case, 40 N. J. Eq. 533.]

8. The verdict on count eight is clearly excessive, being for a sum even in excess of the amount prayed. The error is one in the computation of interest and can, consequently, be corrected by this court or by the trial court under directions.

9. That portion of the answer to count thirty-four in which it was attempted to set up the pendency of a prior action was insufficient and the trial court was right in striking it out. It was not averred when the action had been commenced or whether the administratrices were plaintiffs or defendants and it did appear that it was not a suit on the bond sued on in this ease. Further it was not averred that any of the parties to that action, except the administratrices, were parties to this. [Rodney v. Gibbs, 184 Mo. l. c. 10, 11.]

The thirty-fourth count proceeded on the theory that Tygard had been guilty of a breach of an agreement in disposing of the proceeds of certain lands which it is alleged he bought in to protect Ryan and the Bates County Bank, both being holders of deeds of trust on the property. An agreement between the bank and Ryan that Tygard should buy in the land at trustee’s sale is pleaded and it is alleged Tygard did so but failed to pay off Ryan’s claims out of the proceeds. The count is vague and not so broad as the evidence offered under it. The court permitted a recovery on the theory of a constructive trust. The instruction given assumed the existence of Tygard’s agreement to bid in the property and proceeded, after predicating other facts, to authorize a verdict. This was error since an instruction purporting to cover the case and authorize a verdict on recited facts must not ignore or assume a vital and disputed fact. The instruction assumed the existence of the principal fact pleaded in count thirty-four and authorized the jury to return a verdict without finding that fact. On the evidence in this record this assumption was wrong. [Chappell v. Allen, 38 Mo. l c. 221, 222; Crews v. Lackland, 67 Mo. l. c. 621, 622.] Besides the theory of the instruction was, as already indicated, wholly different from that of the count itself. Neither the land nor its proceeds is sought to be recovered but the action is on the bond and based on Tygard’s liability to Ryan or his estate. An instruction “must be within the purview of both the pleadings and the evidence.” [Degonia v. Railroad, 224 Mo. l. c. 589, 590, and cases cited.]

10. Defendants complain of instruction two. It reads as follows:

“The court instructs the jury that before F. J. Tygard, J. C. Clark and J. R. Morrison, named in the will of J. J. Ryan as executors thereof, could enter upon the discharge of their duties as such executors, they were required by the statutes of this State to execute and deliver to the probate court, or tbe judg'e thereof, a bond with not less than two solvent securities for the faithful discharge of their duties as such executors, which bond the law requires should be executed by both principals and sureties in the probate court while in session or before the judge or clerk thereof, or before some other officer authorized to take acknowledgments of deeds, in which event the fact of such execution in the presence of such officers was required to be certified to the probate court. Now under the law the presumption is that not only said executors and sureties upon said bond discharged their duties as above stated, but that the probate court or the judge thereof, William M. Dalton, also discharged his duty in requiring said bond to be executed or subscribed by all of said executors and the sureties thereon, Isaac N. Mains and J. P. Edwards, either in open court or before the judge of said court personally. ’ ’

Both the maxim that public officers are presumed to do their duty, and the other, that private persons are presumed to act according to their duties and obligations, are woven into the instruction set forth. In no event could there be a presumption arising out of the mere presence of Edwards’s name on the bond unless the signature was genuine. Whatever the effect of the approval of the bond by the probate judg’e, defendant Edwards had no duty to perform in connection with the matter unless he signed the bond, and the so-called presumption as to his acting in accordance with his duty must necessarily grow out of a genuine signature or not arise at all. His plea of non est factum put the genuineness of that signature in issue and this was the real issue in the case. In bringing into the case a presumption as to the sureties, Edwards and Mains, having “performed their duties” and as to their having, therefore, signed the bond in the presence of the probate judge, the trial court begged the question so far as Edwards was concerned. Having told the jury the law required sureties on executors’ bonds to sign in the presence of the judge, the court then told them the law presumed “said . . . sureties upon said bond discharged their duties as above stated,” etc. The effect of all this was to convey to the jury the idea that it was the duty of Edwards and Mains to sign the bond, in the first place, and to sign it in the judge’s presence. The instruction assumed the signing and on this assumption based a presumption of the same thing. Undoubtedly, unless Edwards signed the bond he had no duty in the premises and, consequently, none out of which any presumption could arise. To thus throw into the scale, on the issue, on the plea of nón est factum a practical assumption of the fact in issue, i. e., the genuineness of Edwards’s signature, was error of a serious sort. It was little less than a peremptory instruction to find for plaintiff on this issue.

In so far as the instruction states the familiar maxim concerning the performance of official duties by those upon whom they are enjoined, it is far from clear that it can, in the circumstances of this case, be upheld. It is a maxim, a rule of legal reasoning, and it is certain that the bald and unqualified statement that the law presumes the probate judge did his duty and required the sureties to sign the bond in his presence goes too far. In this case the record of the approval was required to be made and out of the act of approval (of which the record was evidence) it may be said a presumption arises that the probate judge performed his precedent duties, one of which was to require the principals and sureties to sign the bond in his presence. There was certainly no conclusive presumption of law to that effect, however, and the instruction should not have been so phrased as to convey that idea to the jury. It was competent for defendant Edwards to have disproved (which he attempted) the fact that he signed the bond at all, even though such proof ran contrary to the presumption, and the instruction should, at all events have made this clear to the jury. Whether the principle mentioned be called a presumption, a maxim or a rule- of legal reasoning, it is not in every case proper to give it to a jury in the form of a presumption. In this case, however, we see no harm in view of the facts in advising the jury of the rule provided it be properly qualified and guarded as above indicated. It ought to be made plain that all the evidence is to be considered on the issue. [Peyton v. Village, 177 N. Y. l. c. 106, 107.]

The cases cited by respondents’ counsel do not deal with instructions to juries on this subject and certainly none of them authorize the instruction in the form in which it was given. [4 Wigmore on Evidence, sec. 2534; 1 Phillips on Evidence, pp. 642, 643; 2 Wharton on Evidence, sec. 1319; Albany Co. Savings Bank v. McCarty, 149 N. Y. l. c. 83; Rogers v. Pell, 154 N. Y. l. c. 530; 1 Elliott on Evidence, sec. 104.]

11. Other questions are mentioned in the very helpful briefs filed but we do not deem it necessary to discuss them in detail. Suffice it to say that out of the complicated disclosures of this record it results that as to defendant Edwards the judgment must be reversed On each of the counts on which recovery was had against him and the cause remanded. As to defendant Bennett, Adm’r of Mains, the judgment on each of counts fourteen to twenty-seven, inclusive, is affirmed. The judgment on count eight, as to Bennett, is affirmed on condition that a remittitur of four hundred and sixty-two dollars he entered, within ten days, as of the date of the judgment'in the case, otherwise the judgment on said count will stand reversed and cause thereon remanded. The judgment as to Bennett on count thirty-four is reversed and the cause remanded.

Roy, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: ROY, C. P'ER CURIAM.

license: Public Domain

text:
    THE STATE v. R. H. GIBSON, Appellant.
    Division Two,
    June 20, 1912.
    1. INDICTMENT: Uttering Forged Instrument: Selling Forged Instrument. An indictment charged in effect that the defendant feloniously had in his possession a falsely made, altered and forged note, and that he feloniously sold the said falsely made, altered and forged note, with the wilful, etc., intent to have the same altered or passed. Meld, that such indictment cannot be held valid under any séetion of the statutes. Under Sec. 4654, R. S. 1909, it is necessary that the defendant have the instrument with intent to utter it or cause it to be uttered. No such allegation is made in this indictment. Section 4655 requires that the instrument shall be sold or exchanged with intent to have it 'uttered or passed. The allegation in the indictment that the sale was made with intent to have the note altered or passed, invalidates it under Sec. 4655.
    2. -: -: Secs. 4643 and 4644, R. S. 1909. Sections 4643 and 4644, R. S. 1909, refer only to instruments purporting to be executed by banks.
    Appeal from 'Washington Circuit Court. — Eon. J. G. Sheppard, Judge.
    Heverse» and remanded.

      M. E. Rhodes and Byrns & Bean for appellant.
    (1) The court erred in overruling defendant’s motions for a new trial and in arrest of judgment. (2) The court erred in overruling defendant’s motion to. quash the indictment. State v. Calvert, 209’ Mo. 286; State v. Crossman, 214 Mo. 242; R. S. 1909, sec. 5055. (3) There was not a scintilla of evidence in this case tending to show defendant guilty of the offense charged in the indictment. State v. Standifer, 209' Mo. 264; State v. Webster, 152 Mo. 87. The court erred in refusing to instruct the jury to find defendant not guilty.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    The indictment, drawn under section 4651, contains all the essential elements necessary to constitute-the crime therein defined. All of the material ingredients of same are charged in the indictment. It is good, concise and sufficient. R. S. 1909, sec. 4651; State v. Stark, 202 Mo. 210; State v. Hathhorn, 166 Mo. 299; State v. Turner, 148 Mo. 206; State v. Standifer, 209 Mo. 264.
   ROY, C.

The defendant was convicted in the circuit court of Washington county, and sentenced to two years in the penitentiary under an indictment filed March 14, 1911, of which the material parts are as follows:

“The grand jurors for the State of Missouri, summoned from the body of Washington county, impaneled, charged and sworn, upon their oaths, present that R. H. Gibson, late of the county aforesaid, on the---day of March, 1910, at the said county of Washington, State aforesaid, did then and there wilfully, unlawfully and feloniously have in his custody and possession a certain falsely made, altered, forged and counterfeited promissory note purporting to be made by R. H. Gibson and W. W. Turner, which falsely made, altered, forged and counterfeited promissory note is as follows, that is to say:
“ ‘$310.00. March 1, 1910.
“ ‘One year after date, for value received, I promise to pay to the order of J. J. Townsend three hundred ten dollars, at Belgrade, Mo., with interest after date at the rate of 8 per cent per annum, and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of 10 per cent on the amount of this note as attorney’s fee.
No......., Due March 1, ’ll. . R. H. Gibson,
W. W. Turner. ’
“And the said R. H. Gibson, did afterwards, to-wit, on the day and year aforesaid, at and in the county aforesaid, wilfully, unlawfully and feloniously, with intent to injure and defraud, did sell, exchange and deliver the said falsely made, altered, forged and counterfeited promissory note to one J. J. Townsend, in the county of Washington, State of Missouri, with the wilful, unlawful and felonious intent to have the same altered or passed, he, the said R. H. Gibson, then and there knowing the said promissory note to be falsely made, altered, forged and counterfeited, against the peace and dignity of the State. ’ ’

The indictment cannot be held valid under any section of the statute.

Under section 4654 it is necessary that the instrument shall be in the defendant’s possession, with the intent on his part to utter, or cause the same to be uttered. No such allegation is made in the indictment. Section 4655 requires that the instrument shall be sold or exchanged with the intent on defendant’s part to have the same uttered or passed. The indictment alleges that the sale was made to Townsend with the intent to have the same altered or passed.

It needs no discussion of authorities to show that the use of the word “altered” in that connection instead of the word “uttered” invalidates the indictment.

Sections 4643 and 4644 apply only to instruments purporting to be executed by a bank. [State v. Milligan, 170 Mo. l. c. 223.]

.The judgment is reversed and the cause remanded.

Blair, C., concurs.

P'ER CURIAM.

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

All the judges concur.


author: BROWN, P. J.

text:
    THE STATE v. EMIL DARGATZ, Appellant.
    Division Two,
    June 20, 1912.
    1. ABORTION: Information: Act Necessary to Preserve Life. An information charging that in attempting to produce the miscarriage or abortion defendant was not “engaged in any act necessary to preserve the life of Marion Hawkins or that of an unborn child” uses words equivalent to a charge that the criminal acts of the defendant were not necessary to preserve the life of Mrs. Hawkins or that of an unborn child, and is sufficient. It is' not necessary that an information should follow the precise language of the statute.
    2. -: Demurrer to Evidence. Testimony by the husband of the woman upon whom defendant performed the operation that he employed defendant for the sole purpose of destroying pregnancy, and that at the time the operation was performed ' defendant stated that she was in a healthy condition and ought to soon recover, and testimony by the coroner and others that the woman become violently sick about twenty-four hours after the operation and died some ten hours later, made out a prima facie case of manslaughter, and is sufficient to sustain the verdict, notwithstanding defendant testified that his treatment was necessary to relieve the woman of a dead tetras and to preserve her life, and other physicians testified that she would not have died from an attempted abortion alone in so short a time as thirty or forty hours.

      3. -: Instruction: Felony of Abortion. Where the information charges that the defendant produced the death of the woman by his unlawful acts in inserting instruments into her womb, the instructions should not authorize the jury to convict defendant of the “felony of abortion.” Such an information charges manslaughter in the second degree, and the “felony of abortion” as defined by Sec. 4458; R. S.' 1909, is not included within that charge. That offense includes acts which did not result in the death of the woman. The two offenses are inconsistent and cannot be charged in the same information; nor can a defendant charged with the offense of manslaughter in the second degree as denounced by the statute, be convicted of the “felony of abortion” as denounced by the statute, though it consists of an attempt to commit manslaughter in the second degree.
    4. -: Information: Amendment: Re-arraignment. A failure to re-arraign the defendant after the amendment of the information in an immaterial matter is not error; and in this case it is held that the insertion of the word “felonious” before the word “intent” was not a material amendment, because without that word the information contains every necessary averment.
    5. -: Verdict: General. A general verdict is sufficient in a prosecution for manslaughter in the second degree committed in an attempt to produce a miscarriage or abortion upon a woman. ■
    Appeal from Jackson Criminal Court. — Son. Ralph 8. 'Latshaw, Judge.
    Eeversed and remanded.

      Benjamin F. White and Isaac B. Kimbrell for appellant.
    (1) Defendant should have been arraigned after the amended information was filed. State v. Hoffman, 70 Mo. App. 271; State v. Sovern, 225 Mo. 580; State v. Bloedow, 45 Wis. 279; State ex rel. v. Shields, 230 Mo. 103. The insertion of the word “felonious” before the word “intent” was essential, and if that made an indictment good that otherwise was bad, defendant should thereupon be arraigned. (2) The information is defective. The words of the statute “unless the same is necessary to preserve her life or that of an unhorn child” mean that miscarriage or abortion are the matters that must he necessary to preserve her life and here the words “miscarriage,” “abortion” are used in their ordinary sense. State v. Stokes, 54 Yt. 178; Bassett v. State, 41 Ind. 303; Willey v. State, 46 Ind. 363; Cochran v. People, 175 111. 28. Furthermore the instrument should have been described or allegation made that it was unknown to the grand jury. Commonwealth v. Snow, 116 Mass. 47; Commonwealth v. Noble, 165 Mass. 13. (3) This verdict was not responsive to the information and was insufficient and the motion in arrest should have been sustained. State v. Modlin, 197 Mo. 376; State v. DeWitt, 186 Mo. 61; State v. McGee, 181 Mo. 312; Buster v. State, 42 Tex. 315 ; Johnson v. State, 30 Tex. App. 419'; State v. Cronin, 189 Mo. 670- State v. Miller, 189 Mo. 673. (4) “The charge of a greater offense warrants a conviction of a lesser one embraced in it. But the verdict in such case is a special one, and must find all the facts that constitute the lesser offense.” State v. Fritz, 133 N. C. 725. (5) “The charge was manslaughter and the evidence tended only to prove manslaughter or innocence. No instruction should have been given for any other offense because there is no evidence here to sustain any other theory.” State v. Ryan, 15 Ore. 572; Ex parte v.- Dela., 25 Nev. 346.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The amended information is valid and sufficient, closely follows the language of the statute, and contains all the necessary averments to constitute the-offense. R. S. 1909, sec. 4458; State v. Gow, 235 Mo. 322. (2) Appellant filed his motion to quash and,, during the pendency of said motion, the court permitted the prosecuting attorney to write in the information the word “felonious” before the word “intent,” so as to make it read “felonious intent.” This is permissible under our Statute of Jeofails. R. S. 1909, sec. 5061; State v. Emerson, 188 Mo. 412; State v. Darling, 216 Mo. 450; State v. Rollins, 186 Mo. 501; State v. Speyer, 194 ,Mo. 459. (3) Instructions 1 and 2 follow the language of the statute, define the offense as prescribed by the statute, and tell the jury that if appellant committed the act, they will find him guilty and assess his punishment as per the statute. R. S. 1909, sec. 4458. (4) Several physicians, which is quite natural, testified in behalf of appellant, stating this kind of an operation would not kill a patient so soon, it would take longer, but these were expert witnesses and simply gave their opinions, and whose evidence is of the lowest type, and consists of matters of opinion and the deductions and reasoning of witnesses with all the chances of error incident to human reasoning. Jones on Evidence (2 Ed.), secs. 300, 391; Hull v. Trustee, 138 Mo 627; Treat v. Bates, 27 Mich. 290; Lawson on Expert and Opinion Ev. (2 Ed.), pp. 283, 286. The whole evidence shows the guilt of appellant beyond all doubt.
   BROWN, P. J.

On January 18, 1911, defendant was convicted in the criminal court of Jackson county, of the alleged “felony of abortion,” as denounced by section 4458, Revised Statutes 1909, and' appeals from a judgment of that court fixing his punishment at confinement in jail for one year and a fine of $250.

The following is a summary of the evidence:

On September 12,1910, the defendant was a practicing physician with .an office in Kansas City, Missouri. On that date one William A. Hawkins, desiring a criminal operation performed upon his wife, Marion Hawkins, for the purpose, of destroying pregnancy, called on defendant and requested the latter to perform the operation, stating that his said wife had been pregnant for more than a month, and was not willing to bear a child. Defendant first declined to perform the operation, bnt on being told that Mrs. Hawkins was determined not to give birth to a child and would probably commit suicide if she could not be relieved of pregnancy, consented to perform the operation for the sum of ten dollars.

On September 13, 1910, Hawkins brought his wife to defendant’s office, and about five o’clock in the afternoon of that day, defendant attempted to produce a miscarriage or abortion on her, by inserting several instruments into her private parts and womb; and also placed a considerable quantity of “tape” or gauze in her womb. This operation did not really produce a miscarriage or abortion, nor did it produce any immediate results. About twenty-four hours later, Mrs. Hawkins became violently sick, and some ten hours later died.

A post mortem examination held the same day of her death did not indicate the presence of any disease or wound except that her womb and ovaries were black and swollen with clots of decomposed blood inside the womb, which in the opinion of the coroner were produced by some outside interference which had destroyed a living foetus or child three or four weeks old.

The coroner gave it as his opinion that Mrs. Hawkins died from a septic infection brought about by an operation to produce miscarriage, and that said operation might produce death within thirty to forty hours.

The evidence of the coroner was challenged on this point by the evidence of physicians summoned by defendant, who testified that such an operation as Mrs. Hawkins had undergone at the hands of defendant would not produce death so soon as thirty hours; that death when produced by an attempted miscarriage or abortion, would usually not occur sooner than six days, and often not that soon.

Defendant in Ms own behalf testified that he agreed to treat the wife of HawMns for ten dollars, bnt did not agree to produce a miscarriage or abortion; that upon being informed that Mrs. HawMns was determined to get rid of her pregnancy, he surmised that something was wrong with her; that upon examination, he found her womb in an unhealthy and “doughey” condition, the neck being dilated and a foul smelling froth running out, which he thought indicated the existence of a dead foetus inside. Defendant further testified that to relieve Mrs. Hawkins, he inserted into her womb some medicated gauze, first thoroughly cleaning his tools to prevent infection; that his treatment was necessary to relieve the womb of Mrs. Hawkins of the dead matter therein and preserve her life.

The testimony of defendant was weakened by the evidence of the husband of Mrs. HawMns, who stated that he did not employ defendant for any purpose except to produce a miscarriage or abortion, and that at the time of the operation defendant stated that Mrs. HawMns was a healthy woman and ought not to experience any difficulty in getting well.

The State introduced evidence tending to prove that defendant’s reputation for morality was bad.

The defendant seeks a reversal of the judgment ' of the trial court on the following grounds:

1. Error in overruling defendant’s motion to quash the information.

2. Error in refusing to sustain defendant’s demurrer to the evidence.

3. Error in giving instruction numbered 2, which authorized the jury to convict the defendant of “the felony of abortion. ’ ’

4. Error in failing to arraign the defendant after the information had been amended.

5. That the verdict should have been special instead of general.

Such additional parts of the evidence and pleadings as are necessary to a more complete understanding of the case will be recited in our opinion.

The information in the case charges the crime of manslaughter in the second degree, as defined in section 4458, Bevised Statutes 1909, and omitting the caption, signature and affidavit, is as follows:

“Now comes Virgil Conkling, prosecuting attorney for the State of Missouri, in and for the body of this county of Jackson, and files this his amended information, and upon his oath, informs the court, that Emil Dargatz, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid^ on the--day of September, 1910, at the county of Jackson, State of Missouri, with force and arms in and upon one Marion Hawkins, a. pregnant woman, then and there wilfully, unlawfully and feloniously did make an assault, and did then and there wilfully, unlawfully and feloniously use and employ in and upon the body and womb of the said Marion Hawkins a certain instrument or instruments (the exact nature •and description of which the prosecuting attorney is unable to give) and did then and there wilfully and feloniously thrust and force said instrument and instruments into the private parts and womb of the said Marion Hawkins, with the felonious intent then and' there to promote .and produce a miscarriage and abortion upon and to thé person of the said Marion Hawkins; he, the said Emil Dargatz, being then and there a licensed physician and then and there not intending necessary medical or surgical treatment, 'and not being then and there engaged in any act necessary to preserve the life of said Marion Hawkins, or that of an unborn child, and not then and there intending any injury other than the destruction of pregnancy, did by the means aforesaid and in' the manner aforesaid mortally wound, infect and disease the body and womb of tbe said Marion Hawkins, in consequence of which she was made and became mortally sick and of which mortal sickness on the 15th day of September, 1910, at the county of Jackson and State of Missouri, she, the said Marion Hawkins, did die; and so the prosecuting attorney aforesaid, upon his oath aforesaid, doth say that the said Emil Dargatz her, the said Marion Hawkins, at the county and State aforesaid, in the manner and by the means aforesaid, unlawfully, wilfully and feloniously did kill and murder, against the peace and dignity of the State.”

I. The information is attacked on the ground that it does not specifically allege that the criminal acts of the defendant were not necessary to preserve the life of Mrs. Hawkins or that of an unborn child. We find the information charges that in attempting to produce the miscarriage or abortion, defendant was not “engaged in any act necessary to preserve the life of Marion Hawkins or that of an unborn child.” This was equivalent to stating that the unlawful acts of defendant in .attempting to produce a miscarriage or abortion were not necessary to preserve the life of Mrs. Hawkins. It is not necessary that an information should follow the precise language of the statute. The information is sufficient. [State v. Clawson, 30 Mo. App. 139: State v. Harroun, 199 Mo. 519.]

II. Tlie court did not err in refusing to sustain defendant’s demurrer to the evidence. Hawkins, the husband of the woman upon whom defendant performed the criminal operation, testified that he employed defendant for the sole purpose of destroying pregnancy. He also testified that at the time the operation was performed, defendant stated that his wife was in a healthy condition and ought to soon recover. This, with the evidence of the coroner and other testimony that Mrs. Hawkins became violently sick about twenty-four hours after the operation, and died on the second night thereafter, makes out' a prima facie case of manslaughter, as charged. The evidence of defendant that his treatment or acts were necessary to preserve the life of Mrs. Hawkins, and other evidence on the part of defendant that she would not have died in so short a time as thirty or forty hours after the operation was performed, were questions of fact for the jury; and therefore, the case was properly submitted to them.

III. We find, however, that the court committed error in giving instruction number 2, which authorized the jury to convict the defendant of the felony of abortion.

The charge in this case is that the defendant produced the death of Marion Hawkins by his unlawful acts in inserting instruments into her womb. Therefore, under the charge and evidence it was improper to invite the jury to find him guilty of any other crime than manslaughter.

After a careful consideration of section 4458, Revised Statutes 1909, we are of opinion that the crime of the felony of abortion is not included within the charge of manslaughter in the second degree, as defined by that section. That statute expressly recites that where the death of the female does not result from the unlawful acts of defendant, he may be convicted of the felony of abortion. In this case, the charge is that Mrs. Hawkins died as the result of defendant's criminal operation, and he should therefore have been convicted of the crime of manslaughter in the second degree or acquitted.

The' indictment charges manslaughter in the second degree; and therefore is inconsistent with and negatives the theory that only the crime of abortion was committed.

The acts of attempting to commit manslaughter in the second degree, as prohibited by section 4458, supra, were by the General Assembly erected into a separate offense, designated as the “felony of abortion;” consequently that statute (Sec. 4895, R. S. 1909) which provides that persons charged with crime may be convicted of attempting to commit the crime charged, does not apply. The two offenses denounced by said section 4458 are so inconsistent with each other that they cannot both be charged in the same indictment. [State v. Weyland, 126 Mo. App. 723.]

IV. Appellant contends that the trial court committed error in failing to re-arraign defendant after the prosecuting attorney had amended his information by inserting the word “felonious” immediately before the word “intent” where said last named word occurs in the information.

It is true that there was no re-arraignment after the amendment above noted; but we dp not think this constituted error, for the reason that the amendment was not material and not necessary to make a valid, charge against the defendant.

The information as it stood before this amendment charged that the defendant wilfully, unlawfully and feloniously inserted instruments into the womb of Marion Hawkins, with the intent then and there to produce a miscarriage and abortion.- The charge that defendant’s acts were wilfully, unlawfully and feloniously done rendered unnecessary the charge, that he possessed a felonious intent to perform a miscarriage and abortion; therefore the word “felonious,” as inserted in the information, was not a material amendment thereof, and added nothing to its-legal effect. Consequently there was no error in neglecting to re-arraign the defendant after the amendment was made. [Sec. 5061, R. S. 1909.]

Y. Defendant’s contention that the verdict should have been special instead of general will be disregarded in the view we take of the case; because no other crime is necessarily included in the charge that manslaughter was committed by the unlawful acts of defendant in attempting to produce an abortion and miscarriage.

Complaint is further made that the evidence shows that the prosecutor knew the, kind of instruments used by defendant upon Mrs. Hawkins at the time he filed the amended information and therefore should have described them with more particularity. This contention is wholly unsupported by the evidence.

The judgment will be reversed and the cause re* manded for a new trial.

Ferriss and Kennish, J. J., conpur.