source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    BRADLEY B. BUDDY, Appellant, v. UNION TERMINAL RAILWAY COMPANY.
    Division Two,
    December 23, 1918.
    1. ATTRACTIVE NUISANCE: Extending Doctrine. The doctrine of “attractive nuisance,” or of tbe so-called “turntable cases,” has been accepted in this State as well-settled law. But it has gone far beyond tbe law and tbe facts of the old English case of Lynch v. Nurdin, 1 Q. B. 29, upon which it is bottomed, and rests solely, though firmly and beneficently, upon the humane sentiment of putting humanity above property; but it ignores legal landmarks and all other known and* settled grounds of legal liability, and so attenuated and fragile is the legal logic by which it is sustained that it should not be extended, in the absence of legislation.
    2. -:--: Railway Cars: Dangerous Machine. Railway cars standing on tracks are not classed as dangerous machines or as “attractive nuisances,” and the doctrine of the- “turntable” cases is not to be extended to them, the reason being (a) that the danger is obvious, like that from fire or water, and not latent; fb) the great difficulty of putting such cars in motion; (c) the impracticability of locking them, and (d) the futility of blocking them or setting their brakes.
    3. -; -: Small Flat Cars. A railway company was engaged in constructing an extension of its tracks upon its right-of-way at a point about 150 feet distant from a school, at which the plaintiff, nine years and eight months old, was a pupil. On the track the company left standing, for a period of from two to three months, two small eight-wheel flat cars from 16 to 20 feet long, unlocked, unblocked, unbraked and unfastened. The track had a grade of 3% inches per hundred feet, or nearly nine feet for the 3000 feet of open track, and it took; from eight to * twelve boys from 9 to 13 years old to move one of the cars. While the cars were not in use, children from the school, among them plaintiff, over the objections of the company, were in the habit of pushing the cars up and down the track, being trespassers, and while six or seven or more of them, whose ages ranged from ten to thirteen years, were engaged in pushing one of the cars, they ran it against plaintiff and caught and pinched his leg between the axle of the car and some piling lying along the track, tearing the calf of the leg and destroying its muscles. Held, that the car was not an “attractive nuisance” or such a dangerous machine as would justify a recovery by plaintiff under the doctrine of the “turntable” cases.
    Appeal from Buchanan Circuit Court. — Hon, Thomas B. Allen, Judge.
    Affirmed,

      Frank II. Miller and Mytton S Parkinson for appellant.
    (1) The court properly permitted the minor upon coming of age to prosecute the case in his own name. 67 Mo. 660. (2) In placing two small, light cars, when not in use, unequipped with brakes, upon its tracks practically at the door of the school house without causing them to be fastened to the rail, or without enclosing them in any manner, when they saw and knew that the small children in attendance upon the school were constantly using them to play upon and about, and when they knew they were dangerous and that injury was likely to ensue, the defendants were guilty of using their property in a manner which was legally wrong and negligent as recognized in the “turn table” or “attractive nuisance” or “attractive appliance” cases. Railroad v. Stout, 17 Wall. 657; Railroad v. McDonald, 152 U. S. 273; Lynch v. Nurdin, 41 R. C. L. 422; Koons v. Iron Mountain Railroad Co., 65 Mo. 592; Nagel v. Mo. Pac. Ry. Co., 75 Mo. 653; Berry v. Railroad, 214 Mo. 593; Kelly v. Benas, 217 Mo. 1; Schmidt v. Kansas City Distilling Co., 90 Mo. 284; Fink v. Missouri Furnace Co., 10 Mo. App. 61; Porter v. Brewing Assn., 24 Mo. App. 1; Kelley v. Parker-Washington Co., 107 Mo. App. 490; Barney v. Hannibal & St. Joseph Railroad, 126 Mo. 372; O’Hara v. Gaslight Co., 131 Mo. App. 428; O’Hara v. Gaslight Co., 244 Mo. 395; Hite v. Bakery Co., 168 Mo. App. 431; Dyer v. Mo. Pac. Ry. Co., 12 Mo. App. 597; Houck v. Railroad, 116 Mo. App. 559; Smith v. Dole Packing Co., 82 Mo. App. 9; Oberholt v. Vietchs, 93 Mo. 422; Moran v. Pullman Palace Car Co., 134 Mo. 641; Jensen v. Kansas City, 181 Mo. App. 359; Witte v. Stifel, 126 Mo. 295; Arnold v. St. Louis, .152 Mo. 173; Hildebrand v. May Merc. Co., 141 Mo. 122; Hall v. Telephone Co., 141 Mo. App. 183; Couer D’Alene Lumber Co. v. Thompson, 215 Fed. 8,

      John E. Dolman for respondent.
    The sole question presented upon this appeal is under the undisputed evidence that a standard railroad flat car standing upon a practically level track in the private yard of the railway company, without any brakes and without being chained to the track, is an attractive nuisance and a “dangerous machine” within the meaning of the “turntable’” doctrine. Barney v. H. & St. J. Ry. Co., 126 Mo. 372; Compton v Mo. Pac. Ry. Co., 147 Mo. App. 414; Kaumeier v. City Elect. Ry., 116 Mich. 306, 40 L. R. A. 385; Elliott on Railroads, sec. 1260; Central Branch Ry. Co. v. Henigh, 23 Kan. 347.
   FARIS, J.

Plaintiff, then approaching ten years of age, was hurt in 1904, by the alleged negligence of defendant. In 1913 he sued defendant, laying his damages at $30,000. Upon a trial had toward the close of the year 1915, proof was adduced pro and con. At the close of all of the evidence defendant asked, and the court nisi gave to the jury a peremptory instruction that under the pleadings and the evidence their verdict should be for the defendant. Thereupon plaintiff took a nonsuit with leave. After an unavailing motion to get this nonsuit set aside he appealed.

Plaintiff in his petition invokes as his sole ground of recovery application of the well-known doctrine of the “turntable cases” to an injury accruing from certain small flat cars left standing unblocked, unlocked and unbraked upon defendant’s track then under construction, under such situation, it is averred, as to make such cars an attractive plaything for children. Defendant’s answer is a general denial, and a plea that plaintiff was when hurt a trespasser upon defendant’s private premises, and that in this situation his injuries were wholly cansed by his own contributory negligence,

The facts — and it is already apparent that this case turns wholly upon the facts — run briefly thus: Plaintiff when hurt was nine years and eight months old. He was a pupil in the fourth grade of the Floyd School in St. Joseph. Defendant was then engaged in constructing an extension of its tracks upon its right-of-way at a point about 150 feet distant from this school. In this construction work it used, among others, two small eight-wheeled flat cars, which the evidence on plaintiff’s part shows to have been from 16 to 20 feet long, while that of defendant shows that these cars were at the time standard flat cars from 28 to 20 feet in length. We must, however, perforce the well-settled rule in a case wherein a demurrer to the evidence has been sustained, look only to the plaintiff’s evidence on contradicted points. During the time of the building of this extension these small flat cars stood when not in use upon defendant’s track for a period of from two to three months. Children from the Floyd School, among whom was plaintiff, over the objections of defendant, however, were in the habit of pushing these cars up and down the track, on which there was a slight grade of 3% inches per hundred feet. About the 1st day of June, 1904, while some six or seven or more of plaintiff’s fellow-pupils — whose ages ranged from 10 to 13 years — were engaged in pushing one of these cars on this track they ran it against plaintiff and caughi. and pinched his left leg between the axle of the car and some construction material, namely, piling lying along the track; so that the calf of his leg was torn and the muscles thereof were in part destroyed. Subsequently, and after some three months, the injury wholly healed externally, but left the leg of plaintiff in a slightly undersized and a somewhat weakened condition. Some nine years after this accident and on account of a fresh injury to his toe, blood-poison developed and it became necessary by reason thereof to amputate plaintiff’s leg. Answering categorically, the single expert witness who testified as to the proximate cause of the amputation said that “the former injury had nothing to do with the causation of the blood poisoning; the blood poisoning was caused by a subsequent injury nine years later.”

The witnesses for plaintiff — the physician excepted — were schoolmates at the time of the occurrence of the injury to him. Their ages at that time were from 10 to 13 years. Eleven years had elapsqd from the date of this injury till they testified in the case. Much divergence of opinion and much deviation from what must have been the actual facts are to expected. All this we find. Plaintiff’s witnesses all agree that the cars were not fastened to the track, nor locked, nor blocked, nor braked, or even furnished with brakes. On other vital points they varied greatly. In ah effort to fairly present the facts upon the points, (a) how large were these cars, (b) how many pupils it took to move them, and (c) what plaintiff was doing when he was hurt, we excerpt the testimony of all of plaintiff’s witnesses on all these points.

The plaintiff testifying for himself said: Prom the time of my accident, and for two or throe months before, they were in the habit of leaving small flat cars on the track by the school. There were two cars. They were small ordinary flat cars about half, about 16 to 20 feet, between 16 and 18 feet. They were lighter, very much lighter, than other freight cars.” Upon the point of how many children it required to put the car in motion upon this track, he says “six children could move the car.” Touching what he was doing when hurt he says: “When I first saw the car it was probably half a block or a little over below the school, being pushed north by about six or seven children eight or nine or ten years old. I was standing between the ends of the piling when the car gbt me. I don’t remember whether I was pushing or getting ready to push. I started to push the car.”

James V. Riley, approximately ten years old when plaintiff was hurt, testifying for plaintiff, said: “The cars were probably sixteen, or eighteen or twenty feet long. They were undersized flat cars.” Upon the point of the force required to move these cars he is not definite, but speaking to the situation in this behalf at the very moment that plaintiff was hurt said: “We were playing with the car at the time he was hurt. Maybe a dozen children had hold of it. We were pushing it north at the time it caught him. He got caught between the boxing and the poles that were lying along the track, between the boxing and the end of the poles. I don’t know what he was doing at the time.”

Charles F. May, who was eleven years old at the time of the injury to plaintiff, said for plaintiff on the. points mentioned, this: “It was a little, small flat car twenty feet long or a little over; it might have been a little shorter. It was light.” Upon the question of the force — hid ' power — required to put these cars in motion or as to what plaintiff was doing he does not testify, but says as to the manner of his being hurt that “he was caught between the piling and the boxing on the east side.”

Leo Baldin, at the time of the injury to plaintiff twelve years old, testifying for plaintiff, said: 1 ‘ The ears were not ordinary flat cars; they were small flat cars, consisting of eight wheels, with no brakes on them, about 18 feet long, of light construction. Five or six or seven children, ten to twelve years old, could push them back and forward there. I was not pushing the car the morning he was hurt. I was on top riding. There were about ten of us around there ranging from nine to twelve years old. I don’t know how many were pushing the car. Too young to remember that.”

Jesse Whaley, who was twelve years old when plaintiff was injured, testifying for plaintiff, said: “The car might have been twenty feet long and might have been more. I don’t believe the car was twenty-eight feet. It might have taken ten or fifteen, or it might have taken a few more to push it. I didn’t count them. It had taken as many as were there and if there were forty we pushed it, and if there were ten we pushed it.”

George Shoemaker, who was eleven years old when plaintiff was hurt, testifying for the latter, said that he was present when plaintiff was hurt, that the ears were from sixteen to twenty feet long and lighter than the ordinary flat car.

Charles Menninger, who was thirteen years old when plaintiff was hart, said for plaintiff that the cars were between eighteen and twenty feet long and seemed to lie lis’iit cars. That it “took seven or eight boys to push the car, boys ranging from nine to thirteen years.”

The testimony for defendant showed that the cars in question were flat cars from 28 to 30 feet in length, that they were standard ears for use upon steam-operated railroads of the period at which they were built, though smaller than standard flat cars now in use. That they were equipped with brakes, and were used at the time of plaintiff’s injury for hauling steel rails, ties, bolts, anchor bars, spikes and dirt in the construction work of extending a line of track which ran near by the Floyd School. The grade of the track on which plaintiff was hurt was 3% inches per hundred feet or almost nine feet rise to the three hundred feet of total length of the extension then being constructed.

Upon the facts stated was a case made for the jury? That is the sole question mooted upon this appeal. Coming closer to the very marrow of the point at issue, the question is: Did the testimony bring plaintiff’s initial injury within the doctrine of the “attractive nuisance” or “turntable cases?”

Regrettably, the long number of years which were suffered to elapse after the injury and before this action was begun palpably dulled the memories of the witnesses till, as this record makes apparent, much of the testimony is so shot through with contradictions as to be almost impossible of reconciliation. In short, it is almost impossible to ascertain with any degree of certainty what the facts are. It is, however, in effect pleaded, as shown by the nncontradicted testimony adduced by the defendant and nowhere denied by plaintiff, that the injury sued for was caused by a flat car, susceptible of use and actually being used in the operation of a standard-gauge railroad by steam motive power. This statement is, however, subject to the doubt arising upon this record, whether the piling was not, by reason of its presence too near the track, at least a new cause which broke the continuous sequence of the mere car movement and thereby itself produced the hurt of plaintiff. [Hudson v. Railroad, 101 Mo. l. c. 35.] But be this as may be we leave it out of the case.

The doctrine of the “attractive nuisance,” or so-called “turntable cases,” has been accepted in this State as the well-settled law. [O’Hara v. Gaslight Co., 244 Mo. l. c. 404; Kelly v. Benas, 217 Mo. l; Berry v. Railroad, 214 Mo. 593; Nagel v. Railroad, 75 Mo. 653; Koons v. Railroad, 65 Mo. 592.] A number of jurisdictions have refused to accept it, because they have been unable to find that it is bottomed upon sound judicial reasoning. [Wheeling, etc., Railroad v. Harvey, 77 Ohio St. 235; Walker v. Potomac, etc., Railroad Co., 105 Va. 226; Conrad v. Baltimore, etc., Railroad, 64 W. Va. 176; Dobbins v. Railroad, 91 Tex. 60; Ryan v. Towar, 128 Mich. 463; Daniels v. Railroad, 154 Mass. 349.] Nevertheless, so attenuated and fragile is the legal logic by which the doctrine is sustained that the modern tendency is to restrict rather than to extend the field within which the doctrine operates. [Kelly v. Benas, 217 Mo. l. c. 11; Mayfield Water & L. Co. v. Webb’s Admr., 129 Ky. 395; Dahl v. Dredging Co., 125 Minn. 90.] All of the authorities agree that the doctrine is bottomed upon the old English ease of Lynch v. Nurdin, 1 Q. B. 29. Many of the cases agree — and if they do not it is manifest — that the turntable cases go far beyond the strict legal principles involved in the Lynch case supra. Briefly, the facts and the law of that ease were that defendant therein negligently left his horse and cart unattended in a public street. Plaintiff,-a child seven years of age, got on the cart to play. Another child led or drove the horse on; plaintiff fell from the cart, and the cart wheel ran over him and broke his leg. Held, that defendant was liable, though plaintiff was a trespasser and his own trespass contributed to his hurt, and it was therefore ruled to be a question for the jury whether defendant was negligent and whether his said negligence caused plaintiff’s injury.

In a very able and lucid discussion of the legal grounds upon which the doctrine of the turntable cases ought to rest in order to be immune against criticism, for that they are violative of well-recognized rules of legal reasoning, the Supreme Court of Texas said there were of necessity three questions which should be determined in the affirmative before applying the doctrine. These were: “(1) Did the law impose upon the company a duty to use care to keep its property in such condition that persons going thereon without its invitation would be injured? (2) was the child six years old guilty of contributory negligence? and (3) was the company guilty of negligence in leaving the turntable unlocked?” [Dobbins v. Railroad, 91 Tex. l. c. 63.]

In the case of Lynch v. Nurdin, supra, it is obvious that defendant owed a duty to the public, including the plaintiff, not to leave his horse and cart unfastened and unattended in a public street. It is of course also evident that, barring this omission of duty, defendant’s horse and cart had the same right, but no more, to be in a public street that the plaintiff, therein had. So, the first query of the Supreme Court of Texas is fairly answered in the affirmative by the undisputed facts of Lynch v. Nurdin. Unfortunately for legal reasoning, the same can not be said of the great majority of the other attractive-nuisance cases. It is obvious that in the Lynch case, supra, the infancy and tender years of the plaintiff go only to, and are in the law of the case used only for, the purpose of excusing his contributory negligence, otherwise present and glaring. The plaintiff was no trespasser upon the street where the cart and the horse were; he was merely a trespasser upon the personal property of the defendant, which personal property was at the time situate at a spot whereat plaintiff and defendant had mutual and equal concurrent rights, but whereat it was a negligent act to leave the horse unfastened and unattended.

But the cases which in the several jurisdictions of the United States ostensibly follow the case of Lynch v. Nurdin, go very much farther than that case, in that they excuse a trespass upon private real property and labor to find some logical basis for the duty to safeguard such a trespasser. In many of the American cases there are involved trespasses both upon real property and upon personal property. Cases wherein, upon any ordinary rule on which legal liability is bottomed, no duty is owed by the landowner to the trespasser, save to forbear inflicting upon him a wanton or malicious injury. Some courts attempt to bottom the duty owed upon the maxim, Sic uieve Luo ut non alienum Icedas, which roughly turned into the vernacular means that one must so use his own property as not to injure others, 'or strictly, the property of others. But it is difficult to find elsewhere in the law any authority for such an application of this maxim. For the ordinary and usual application of it is to what may for lack- of a better term be denominated extra-territorial injuries. That is, injuries produced by causes which, arising from the property of the tortfeasor, pass or flow therefrom.on to the person or property of him who is injured. But in the application of the ‘ ‘ turntable-cases” doctrine the person injured does not get hurt while upon his own property or premises, or by anything passing from, or flowing off the premises of another, but he is hurt while he is off his own proper place or property, trespassing upon the property of his neighbor. [See cases cited in note appended to Cahill v. Stone Co., 19 L. R. A. (N. S.) 1094 et seq.]

It is sometimes said that the legal duty to observe care under this doctrine arises from a species of implied invitation, not involving the actual intention, or even the wish of the defendant that the person injured should come upon defendant’s premises, or that he should do the act, or meddle with 'the instrumentality, which produces his injury, but which invitation consists alone in leaving exposed and unguarded, at a place where defendant knows incompetent persons assemble, a thing which is of such nature as to allure or tempt children of tender years or others non sui juris to play with such thing or otherwise use or meddle with it. [Chicago, etc., Railroad v. Fox, 38 Ind. App. 268.] But the difficulties with this rule is that no property-owner can possibly foretell what thing is or may prove to be tempting or alluring to persons non sui juris, and the ruled cases show that the doctrine has often been applied to conditions where every effort had been made by the owner of the premises to prevent the meddling use of the alluring object and to keep trespassers off the premises; thus by active inhibition negativing any invitation bottomed upon implication. Moreover, such a reason for the legal duty necessary to uphold this doctrine would, inevitably make the doctrine applicable to cases where fruit, always tempting to children, grotvs upon high trees, alioays dangerous to children. [Ritz v. Wheeling, 43 L. R. A. 148.]

We are therefore forced to the view that the American doctrine of liability for damages caused' by “attractive nuisances” so-called has gone much beyond the law and the facts of Lynch v. Nurdin, supra, and that the doctrine is sui generis, since there is no well-settled legal foundation upon which to bottom the duty to observe care at all toward a trespasser. This thought was well-expressed by our learned former colleague Lamm, J., who, in the case of Kelly v. Benas, 217 Mo. l. c. 11, after collating and discussing practically all of our Missouri cases upon this subject, said:

"There has been marked judicial eloquence and astuteness in stating the legal ground of liability in thé turntable cases and no little difficulty is found in formulating sound and settled legal principles for it to rest on, but it is established in our law, and doubtless on principle ought to be applied (in those jurisdictions asserting the doctrine) to other cases coming strictly within the limits of the doctrine and presenting every ear-marking element upon which liability is predicated in the principal case. While this is so, the manifest distress and injustice flowing from unnecessarily extending the doctrine, or loosely applying it to many conceivable cases, has caused those courts accepting it to restrict its application to the narrowest bounds.”

Ought then a doctrine resting, firmly and beneficently, we concede, but solely, upon the humane sentiment of putting humanity above property. (Eddington v. Railroad, 57 L. R. A. 561), but otherwise ignoring legal landmarks and all other known and settled grounds of legal liability, be, absent legislation, further extended? We think not.

Discussing this identical question, Judge Lamm, correctly and inimitably said this:

"If the old channel of the law is to be quite changed -by the application of the new doctrine automatically and without discrimination, if - sentimental considerations (however elevated and tender) are to usurp the place of cold and calm reason as the foundation for rules of law, then the floodgate now damming back liability will be raised, letting in strange and deep waters for the landowner to struggle with. Not only will he be liable for boys drowned- while swimming in his stock pond (the idea of swimming being alluring tc a boy), for those who fall into uncovered wells, cisterns and cellars (the notion of playing on the brink of such being a boyish one), for children who are suffocated while playing in piles of sand accumulated for ’building purposes or in sliding down stacks of straw unscientifically piled and exposed, but he may be mule-ted in damages for injuries to Ms neighbors’ children, who, romping in his haymow, without his invitation, break their bones by sliding down his hay chute, or those who, playing in his rock quarry, are hurt. Shall he fence against adventurous, trespassing boys? Almost as well suggest 'that he build a wall against birds.’ If he is held to liability for injury to the children of Jones because of the way he piles his lumber, by the same token, as to Brown, liability would be fastened on him for the way he piles his stones, his bricks, Ms corn in pens, his hay ricks and his cord wood on his private grounds — in fact, as has been pointedly said, every landowner will be liable for injuries to his neighlor’s children under the new doctrine except the neighbor himself. We cannot well write the law that way.” [Kelly v. Benas, 217 Mo. l. c. 13-14.]

No case has been called to our attention, nor have we ourselves, after a fairly careful search found any such, wherein this doctrine has been applied to cars whereof the motive power was, as here, steam, or even electricity. In other words such cars, instead of being regarded as attractive nuisances when standing upon railroad tracks, have uniformly been held not to fall into the category of attractive nuisances. [Barney v. Railroad Co., 126 Mo. 373; Compton v. Railroad, 147 Mo. App. l. c. 422; Robinson v. Railroad, 7 Utah, 493; McEachern v. Railroad, 150 Mass. 515; George v. Railroad, 126 Cal. 357; Gay v. Railroad, 159 Mass. 238; Central, etc., Railroad v. Henigh, 23 Kan. 347; Kaumeier v. Elec. Ry. Co., 116 Mich. 306; Louisville, etc., Railroad v. Ray, 124 Tenn. 16; Chicago, etc., Railroad v. McLaughlin, 47 Ill. 265; East St. Louis, etc. Ry. Co. v. Jenks, 54 Ill. App. 91; Myers v. Railroad, 209 Mass. 55; 3 Elliott on Railroads, sec. 1260; 20 R. C. L. 92; 29 Cyc. 465.] This upon the theories, it seems, (a) that the danger is obvious, like that from fire or water, and not latent; (b) the great difficulty of putting such cars in motion; and also, perhaps, (c) the impracticability of locking them, and (d) the ntter futility of blocking them or setting the brakes on them. [See Note to Cahill v. Stone Co., supra.]

Upon the question of whether a railroad car is an “attractive nuisance,” or a dangerous machine .within the purview of the “turntable-cases” doctrine, this court said in the case of Barney v. Railroad, supra, at page 382, this:

“In the first place, the rule applicable in what is known as the ‘turntable-cases’ has no application to cases of this sort. Railroad cars and similar machinery are not ‘dangerous machines’ within the meaning of that rule, as is abundantly and exhaustively shown, both directly and indirectly, in the following cases: Bishop v. Railroad, 14 R. I. 314; Catlett v. Railroad, 21 S. W. 1062; Railroad v. McLaughlin, 47 Ill. 265; Gavin v. City, 97 Ill. 66.”

In the case of Kaumeier v. Railroad, 116 Mich. l. c. 312 et seq., the Supreme Court of Michigan, said:

“The car in question in the present case was not dangerous in its construction. It was a plain car, with four wheels, with no machinery about it. It had no brake, but was a small platform car. It is true that it stood upon a track where it might be moved by several children applying their united strength. Several children might, in the same way, move a wagon or carriage left beside the highway. We apprehend that no claim, of negligence could be sustained against the owner of such a vehicle if one of the children climbing upon it should fall off and be run over, even if the wheels were left without blocking. . . . The, defend-

ant had just as much right to leave this car where it did as a farmer would have to leave his wagon or carriage upon his own side of the highway, and no one would have the right to move it, except upon the claim that it impeded public travel. The ear being rightfully left where it was upon the track, and not being a thing dangerous in itself, the court should have directed the verdict in favor of the defendant.”

In the case of Cahill v. Stone Co., 153 Cal. 571, 19 L. R. A. (N. S.) 1094, the plaintiff, injured by having his foot crushed by a push-car loaded with rails and left unattended, unlocked, unbraked and unfastened upon a railroad track, was allowed to recover — if in the view of the jury his alleged lack of tender years or understanding should not preclude him. The latter ease comes nearer upon its facts to the instant case than any other we have been able to find in the books. Granting, at least for the argument’s sake, the correctness of the ruling in the Cahill case, it may be, we thing, fairly distinguished from the case at bar. There the car causing the plaintiff’s hurt was not a standard ■ steam railway flat car of the period, but a push-car, inferably, though the reported case does not in terms so say, of the ordinary size and well-known sort. Neither does the report of- the Cahill case disclose how much force, or how many “kid-power,” was required to put this push-car in motion. In the case of the flat car here in question, the testimony shows that it required from six to eight boys from nine to ’ thirteen years of age to move the car, and then it would only run a short distance and stop. Some of plaintiff’s witnesses say that it required ten or fifteen children to put the flat car in motion. One of them said “may be a dozen children had hold of it” at the time the plaintiff was hurt. Such being the case, nothing is plainer than that any sort or size of car could be moved if only enough children should devote themselves to the task, and that thus any sort of car, however great in size or weight, or any other movable construction or mechanism, could be converted into a dangerous machine, and thus brought within the doctrine of the turntable cases, if there is to be no limit set to the numbers, or the force required to overcome inertia and initiate motion.

We are for these reasons constrained to take the view that the learned trial judge was correct in his ruling and that the judgment rendered below ought to be affirmed.

Let it be so ordered. All concur.


author: WILLIAMS, J.

text:
    THE STATE v. LEO BERGER, alias ROY BOERCHERS, Principal, et al.; I. GRODSKY, Surety, Appellant.
    Division Two,
    December 23, 1918.
    1. RECOGNIZANCE: Appearance on Any Day: Court of Criminal ■ Correction. Under the statutes the judge of the St. Louis Court of Criminal Correction, as any other examining magistrate, may at the conclusion of an examination in a felony case, condition the recognizance upon the appearance of the accused on not only a day certain, but. also on any future day to which the cause may be continued.
    2. -: -: Continuance: No Showing: Recital in Writ. Where the recognizance required the appearance of the- principal on May 22nd and on “any future day to which said cause may be continued,” the magistrate was -without authority to enter a judgment of default on June 2nd unless the cause was continued to that date, and in a proceeding by scire facias in the circuit court, for a judgment of forfeiture on the recognizance, it is necessary to show that the cause was continued to June 2nd. An allegation of the scire facias writ that the cause had been continued to June 2nd is not a sufficient showing.
    Appeal from St Louis City Circuit Court. — Hon. Karl Kimmel, Judge.
    Reversed and remanded.

      WilUam E. Fish for appellant.
    (1) The judge of the St. Louis Court of Criminal Correction, in the exercise of his powers as an examining magistrate, can take a bond for the appearance of a defendant to a day certain, and he cannot lawfully condition such bond for the appearance of the party to any future day to which the cause may be continued, or not to depart the court without leave. Such conditions are nugatory and confer no power to require further appearance. Laws 1869, p. 195, sec. 7. In felonies said court does not act as a court, but merely as an examining magistrate. Ex Parte Bedard, 106 Mo. 627; State v. Hoeffner, 44 Mo. App. 545; State v. Hoeffner, 63 Mo. App. 410. It cannot, in exercising its functions as examining magistrate, make any condition in a bond not authorized by statute, and the statutes authorize a bond only to a day certain. Tbe law upon this seems to be well established. State v. Bobb, 39 Mo. App. 543; Sec. 5027, R. S. 1909; State v. Mackey, 55 Mo. 51; Allen v. .Ice Co., 196 Mo. 435; State v. Charles, 207 Mo. 40. (2) But even if the bond lawfully required the appearance of defendant “on any future day to which this said cause may be continued,” the order declaring the default should have made it appear that the cause had been continued to that date. The record of said default does not even suggest that there had been a continuance, but simply says that the bond was for appearance on May 22, and that he did not appear on June 2; and default was accordingly entered. Certainly, in the case of such a tribunal, we will not be permitted to presume or infer that the cause had been continued to the date on which it declared a default. That necessary fact should be established by evidence.

      Frank W. McAllister, Attorney-General, G. P. Le-Mire, Assistant Attorney-General, for respondent.
    The recognizance bound the principal to appear and answer a charge of burglary in the second degree and larceny before the court of criminal correction on a day certain and on any future day to which the case should be continued^ and not to depart without leave of said court. In form and substance the bond complies with the statute in every particular. Sec. 5134, R. S. 1909; State v. Epstein, 186 Mo. 100; State v. Davidson, 20 Mo. 407; State v. Potts, 60 Mo. 368; State v. Egermann, 172 Mo. 305.
   WILLIAMS, J.

This is an appeal by the surety from' a judgment rendered against him in the circuit court of the city of St.' Louis, in a proceeding by scire facias, upon a forfeited recognizance.

On May 13, 1916, the appellant, as surety, executed before the judge of the St. Louis Court of Criminal Correction, the following recognizance:

State of Missouri, 1 City of St. Louis. J

St. Louis Court of Criminal Correction.

BE IT REMEMBERED, that on this 13th day of May, in the year nineteen hundred and sixteen, personally came before me, the undersigned, Judge of the St. Louis Court of Criminal Correction, within and for St. Louis City, Leo Berger, alias Roy Boerchers, as principal, and I. Grodsky, as security, and acknowledge themselves, jointly and severally, to owe the State of Missouri the sum of fifteen hundred dollars, to be levied on their respective goods and chattels, lands and tenements; yet upon condition that the said Leo Berger, alias Roy Boerchers, shall personally appear before the St. Louis Court of Criminal Correction Div. No. 2 on the 22nd day of May, A. D., 1916, at the opening of said court at ten o’clock in the forenoon of said day, then and there to answer a charge of burglary in second degree and larceny, and shall also appear on any future day to which this said cause may be continued, and shall not depart the said court without leave thereof, then this recognizance to be void, otherwise to remain in full force and effect.

Leo Berger (SEAL)

I. Grodsky (SEAL)

Taken and certified the day and year aforesaid.

Residence of Principal 1400 Monroe.

Benjamin F. Clark,

Judge of the St. Louis Court of Criminal Correction.

On June 2, 1916, the court of criminal correction made its record stating that both the principal and surety of said bond were called on June 2, 1916, to come into court to save their recognizance, but that they made default, whereupon it was ordered by the court that the cause be certified to the circuit court.

On June 6, 1916, the said circuit court entered a judgment of forfeiture and ordered the issuance of a writ of scire facias, which was afterwards done and served upon the surety.

Thereafter appellant filed a demurrer to the writ, which was overruled. The appellant thereupon filed a general denial by way of answer and the cause proceeded to trial and judgment as above mentioned.

Such further facts or absence of facts as shall be necessary to an understanding of this review will be stated in the course of the opinion.

I. It is first contended by appellant that the portion of the recognizance which undertook to require the appearance of the principal “on any future day to which this said cause may he continued,” was without authority of law and therefore could not be made the basis of a forfeiture of the recognizance.

In this behalf it is insisted that the judge of the St. Louis Court of Criminal Correction, acting as an examining magistrate in felony cases, could condition the recognizance upon the appearance of the defendant only to a day certain, and was without authority to further condition such recognizance upon the appearance of the defendant on any future day to which the examination might be continued, citing in support thereof the following cases, to-wit: State v. Bobb, 39 Mo. App. 543; State v. Lewis, 61 Mo. App. 633; State v. Mackey, 55 Mo. 51; Allen v. Ice Co., 196 Mo. 435, and State v. Charles, 207 Mo. 40.

After a careful consideration of the point, including a review of the cases cited, we are unable to allow the contention made.

Section 7, page 2543, Revised Statutes 1899, in defining the powers of the judge of the St. Louis Court of Criminal Correction, provides that “in cases of felony, he shall have and may exercise, all the powers of an examining magistrate.”

The powers of an examining magistrate in taking a reeoginance for the defendant’s appearance for preliminary examination in cases of felony are stated in Section 5027, Revised Statutes 1909, which is as follows:

“Sec. 5027. A magistrate may adjourn an examination of a prisoner pending before himself, from time to time as occasion requires, not exceeding ten days at one time, and to the same or any different place in the county, as he deems necessary; and for the purpose of enabling the prisoner to procure the attendance of witnesses, or for other good and sufficient cause shown by said prisoner, said magistrate shall allow such an adjournment on the motion of the prisoner. In the meantime, if the party is charged with an offense not bailable, he shall be committed; otherwise he may be recognized, in a sum and with sureties to the satisfaction of the magistrate, for his appearance for such further examination, and for want of such recognizance he shall be committed. [R. S. 1899, see. 2448.]

It will be noticed that the above statute after providing for continuances of the examination “from time to time as occasion requires,” etc., proceeds with the declaration that “in the meantime,. ... he may be recognised” (when the offense is bailable) . . . for his appearance for such further examination.”

Upon the broad and comprehensive language of the statute we have no difficulty in arriving at the conclusion that the examining magistrate may condition-the recognizance upon the appearance of the accused on not only a day certain but also in addition thereto on, “any future day to which the cause may be cotinued,” as was done in the case at bar. By this method the accused does in truth, and in fact, become recognized “for his appearance for such further examination.”

One of the very purposes of the above statute is to provide a method by which the accused may, in a proper case, be released under bail, until the final determination of .the examination. How that purpose could be more greatly subserved by requiring the accused to have his sureties come into court, and sign a new recognizance upon each continuance of the case, as appellant’s construction would require, we are at a loss to understand. Such procedure would in no manner result in added protection to the State. Its only result would be to cast an unnecessary and harrassing burden upon the accused. The language of the statute under review does not justify such a construction.

We are unable to discover wherein the above cases cited by appellant are in point here. In the Bobb case, the principal was recognized to appear on a day certain, before a justice of the peace for examination. He appeared on the day designated, the examination was completed, and the magistrate announced his final decision in the cause. Thereafter the justice and constable permitted the accused to leave for the purpose of procuring bail for his appearance in the circuit court. He never returned, and it was held that the surety was discharged from liability. Other points of difference might also be mentioned, but the foregoing is sufficient to show that the point here presented was not there involved.

The Lewis case merely undertakes to follow the Bobb case. An examination will disclose, however, that the recognizance in the Lewis case was controlled by an entirely different statute.

The Mackey case considered a recognizance originally given in the circuit court and was based upon an entirely different statute.

The recognizance held in judgment in the Ice Company case was based upon Section 2759, Revised Statutes 1899, afterwards amended in 1901, and now Section 4978, Revised Statutes 1909, being the statute dealing with recognizances in misdemeanor cases.

In the Charles case the court merely held that the ' appearance and plea of guilty by the principal, has the same effect upon the liability of his sureties as a verdict of guilty.

An interesting discussion of some of the above cases will be found in the case of St. Louis v. Henning, 235 Mo. 44, to which the curious'may refer.

II. The recognizance in the case at.bar required the appearance of the principal before the court of criminal correction on May 22, 1916, and on “any future day to which this said cause may be continued.” The record offered in evidence shows that a record of default was entered in said court because the principal failed to appear on June 2, 1916, but the record which was offered in evidence nowhere shows that the cause had been duly continued to June 2nd. Of course if the cause had not been continued to that day the terms of the recognizance would not have required the appearance of- the principal on that day, and under such circumstances the magistrate would have been without authority to enter up the record of default. The allegation of the writ of scire facias, to the effect that the cause had been continued to the 2nd day of June, was not admitted by the pleadings, but on the other hand was denied, and the question of fact thus raised was put at issue.

Appellant contends that by reason of the absence of proof of such a continuance the evidence was insufficient to support the judgment. We are of the opinion that this point is well taken. This was one of the material allegations of the writ and the burden of proving such allegation (upon issue made) was upon the State. [State v. Gorley and Cloud, 2 Iowa, 52; Goodin v. State, 14 Tex. App. 443; General Bonding & Casualty Ins. Co. v. State, 73 Tex. Cr. R. 649.]

For the reasons stated above, it follows that the judgment should be reversed and the cause remanded, It is so ordered.

All concur.


author: WALKER, P. J.

text:
    THE STATE v. WILLIAM DAVID JONES, Appellant.
    Division Two,
    December 23, 1918.
    1. INSTRUCTIONS: Refusal of Defendant’s. It is not error to refuse instructions asked by defendant containing no statement of the pertinent facts, if those given cover the principles of law applicable to such facts and embody a correct statement of same.
    2. OCCURRENCES AT TRIAL: Preserved for Review: Motion for New Trial. Matters occurring during a trial in order to be reviewed on appeal, must be incorporated in a bill of exceptions. It is not sufficient to set them out for the first time in a motion for a new trial.
    3. --: Attempt to Shoot Defendant: No Motion to Discharge Jury: Not Incorporated in Bill of Exceptions. Immediately after the close of the argument for the defendant, charged with murder in the first degree, the wife of the deceased arose from her seat and drawing a pistol shot at and wounded the defendant. The court ordered a recess and directed the jury to be taken to their room, and when the excitement subsided the trial proceeded, resulting in a verdict of guilty of murder in tile second degree. No objection to the course thus pursued was then made, nor was a motion filed to'discharge the jury and order a new trial, but defendant participated in the trial to its close. This occurrence is preserved for review only in the motion for a new trial. Held, the act belongs to that class of occurrences designated as the "conduct of spectators,” and it is not excepted from the rule that all matters occurring during the progress of a trial, to be entitled to a review on appeal, must be preserved in a bill of exceptions.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.
    P. D. Clear for appellant.

      Frank W. McAllister, Attorney-General, and George V. Berry, Special Assistant Attorney-General.
    (1) There was no error in refusal of new trial. No point was saved in regard to the shooting in the court room. State v. Gartrell, 171 Mo. 513; State v. Reeves, 195 S. W. 1031; State v. Douglas, 258 Mo. 299. (2) Instructions offered by appellant were properly refused. They were already covered by instructions given. State v. Lewis, 264 Mo. 432; State v. Walker, 232 Mo. 264; State v. Wooley, 215 Mo. 680; State v. Sassman, 214 Mo. 730; State v. Atckley, 186 Mo. 195.
   WALKER, P. J.

The appellant was charged by information in the criminal court of Jackson County, with murder in the first degree, with having shot and killed one Arthur Dorsett, a police officer, August 6, 1917. Upon a trial, he was found guilty of murder in the second degree, and sentenced to fifty years’ imprisonment in the penitentiary, from which judgment he appeals.

Several police officers, of which the deceased was one, went to where the appellant, a negro, was boarding, in Kansas City, to get a dog, which it was claimed appellant was improperly refusing to surrender to the owner. When the officers entered the house where the appellant resided and demanded the surrender to them of the dog, or that appellant accompany them to the police station, he ostensibly expressed a willingness to comply with their request by saying: “Wait until I go into the adjoining room and get my coat and hat.” He returned at once from the room with a pistol in his hand, and fired at the officers. After shooting Officer Dorsett twice, he shot the other officer, Clifford, and made his escape. The death of Dorsett resulted from the gunshot wounds inflicted by appellant. Soon thereafter, appellant was apprehended in Kansas City, Kansas, and was brought back for trial. His testimony is to dhe effect that the officers, upon entering the house, began firing at him, and that he shot only in self-defense; that he did not know at the time that they were officers; nor did he understand the purpose for which they demanded that he accompany them to the station.

No brief has been filed on behalf of the appellant. Examining the record, as we are required to do, and reviewing the errors sought to be preserved in the motion for a new trial, we find nothing of such a prejudicial nature as to warrant a reversal. More particularly stated, the information contains all the essential allegations necessary to charge murder in the first degree; no material error was committed in the admission or exclusion of testimony; the instructions given by the court correctly presented every phase of the case authorized by the testimony; the refusal of the court to grant two instructions requested by appellant was not error, in that they had been fully covered by instructions given embodying a correct statement of the facts, which appellant’s instructions did not present; nor was the appellant, for a like reason, entitled to the instructions set forth in his motion for a new trial, and which it is insisted the court should have given on its own motion. [State v. Shellman, 192 S. W. (Mo.) l. c. 437.]

An unusual incident occurred, which appellant contends in his motion for a new trial should work a reversal. Immediately after the close of the argument to the jury of the counsel for appellant, the widow of the deceased officer, Dorsett, arose in her seat, and drawing a pistol which she had theretofore concealed, shot a,t the appellant, inflicting a slight flesh wound. The court ordered a recess and directed that the jury be taken to their room. When the excitement subsided, the jury was recalled, and the trial completed. Counsel for appellant interposed no objection to the course thus pursued, but proceeded to participate in the trial until its close. Other than to state the facts of this occurrence in the motion for a new trial, in which it is insisted that it was the duty of the court to discharge the jury and order a new trial, no effort was made to preserve and present this matter for review. We have so frequently said that matters occurring during the progress of a trial should, to entitle them to our consideration, he incorporated in the hill of exceptions, that a repetition of this requirement seems to he an act of supererogation. The act of the woman belongs to that class of occurrences designated as the “conduct of spectators.” There is nothing to distinguish it from any other act belonging to this class, nor to except it from the requirements of the rule we have stated. An attempt to preserve it by setting it up for the first time in a motion for a new trial, will not suffice. In this regard, therefore, there is nothing for us to review. [State v. Reeves, 195 S. W. (Mo.) l. c. 1031; State v. Gartrell, 171 Mo. 512; State v. Dusenberry, 112 Mo. 277.]

Finding no error authorizing a reversal, the judgment should he affirmed, and it is ordered.

All concur.


author: WHITE, C.

text:
    THE STATE v. JAMES GARRETT, Appellant.
    Division Two,
    December 23, 1918.
    1. ELISOR: Summoning Regular Panel. Where the record shows that the elisor, appointed at the previous term because, of the prejudice of the sheriff, made a return of his venire, giving the names of forty qualified jurors, who were impaneled and sworn in the murder case, and nothing to show that the court gave any direction to the elisor as to whom he should summon or that any member of the regular panel was on the list, an objection that the court directed the elisor to call some of the regular panel as jurors in the case is without merit.
    2. INSTRUCTION: Feeling for or Relation to Defendant. A cautionary instruction on the credibility of witnesses, telling the jury that in determining the weight to be given the testimony of any witness they may “take into consideration his or her interest, if any, in result from the trial, and his or her feeling for or relation to defendant,” includes a relation of antagonism as well as of friendship, and applies to all witnesses who testified, for or against defendant, and is not likely to be misunderstood by the jury.
    3. -: Inference Upon inference: Circumstantial Evidnee: Facts to be Proven. An instruction which tells the jury that “if certain facts and circumstances” are proven by the State from which you “may infer other and connected facts” which usually and reasonably follow according to the common experience of mankind, and if such “facts and circumstances are consistent with each other,” etc., and if such “facts and circumstances have been proven” so as to satisfy your minds and consciences beyond a reasonable doubt, etc., does not permit the jury to infer certain facts from facts proven, and from these inferences deduct a further inference of guilt, but requires the “facts and circumstances” which must be consistent with defendant’s guilt to be proven; and if the awkwardly expressed wording was calculated to mislead the jury, that danger was removed by two instructions for defendant which clearly defined circumstantial evidence and the conclusions that may be drawn from it, and therefore the instruction cannot be held to have misled the jury.
    4. -: Deliberatly: Must Be Defined. It is unnecessary to prove deliberation when homicide has been committed in the perpetration of, or in an attempt to perpetrate, robbery or other felony. But though there is some evidence to show that the homicide was committed in the perpetration of another felony, yet if no instruction is given requiring the jury to find that such other felony was perpetrated or attempted, it is necessary to define deliberately in a case of first-degree murder.
    5. --: -: Must Be Proven and Defined. Deliberation is an essential element of murder in the first degree, and to sustain a verdict every constituent element of the crime must be proven, and in order that the jury may be able to find the element of deliberation they must be instructed how to find it, that is, it must be defined. The only exception to this rule is made by the statute (Sec. 4448, B. S. 1909) which makes the commission or the attempt to commit a felony the legal equivalent of deliberation and proof of deliberation in the murder trial unnecessary; but if there was no instruction requiring the jury to find that the homicide was committed in the perpetration or attempted perpetration of another felony, and it cannot therefore be said that they found that such felony was perpetrated or attempted, it,was reversible error in the murder trial to fail to define deliberately.
    6. -: -: -: Excuse: No Showing of Want of Deliberation. A failure to define deliberately cannot be excused on the theory that all the evidence tends to show the homicide was done deliberately and none tends to show a want of deliberation. [Distinguishing State v. Ferguson, 162 Mo. 668 and 152 Mo. 196; State v. Jackson, 167 Mo. 291, and State v. Tettaton, 159 Mo. 377, and pointing out that if those eases announce a contrary doctrine they conflict with State v. Hill, 69 Mo. 451; State y. Mitchell, 64 Mo. 191; State v. Dearing, 65 Mo. 530; State v. Daly, 210 Mo. 1. c. 679; and State y. Sims, 71 Mo. 538.]
    Appeal from Saline County Criminal Court. — Hon. John A. Rich, Judge.
    Reversed and reminded.

      Roy Rucker and R. M. Reynolds for appellant.

      Frank W. McAllister, Attorney-General, Clarence P. LeMire and Thomas J. Cole, Assistant Attorneys-General, for respondent.
    (1) The failure of the trial court to define the word “deliberately” in its instructions to the jury was not reversible error, (a) An instruction defining “deliberately” was not necessary in this case, because the evidence shows that the murder was committed while the defendant was, engaged in the perpetration of a robbery. Sec. 4448, R. S. 1909; State v. Bobbitt, 215 Mo. 39; State v. Daly, 210 Mo. 679; State v. Foster, 136 Mo. 655; State v. Schmidt, 136 Mo. 651; State v. Meyers, 99 Mo. 112; State v. Hopkirk, 84 Mo. 287; State v. Green, 66 Mo. 648; State v. Jennings, 18 Mo. 444. (b) Improper definitions of “deliberately” in instructions have not, in certain cases, caused a reversái. State v. Jackson, 167 Mo. 296; State v. Ferguson, 162 Mo. 677; State v. Tettaton, 159 Mo. 377; State v. Ward, 74 Mo. 256. (2) The instruction on circumstantial evidence in this case (No. 6 given on behalf of the State) was in proper form. State v. Bauerle, 145 Mo. 16; State v. Taylor, 134 Mo. 151; Ferris & Rosskopf, Instructions to Juries, sec. 539, p. 635, Instruction 8.
   WHITE, C.

The appellant was found guilty of murder in the first degree in the criminal court of Saline County. He was charged with having killed, on the sixth day of January, 1917, Mrs. Sarah J. Campbell, a widow sixty-five years of age.

Mrs. Campbell lived at New Frankfort, a small town on the south side of the Missouri River, in Saline County. Her husband had died in June, 1916. It was reputed in the neighborhood that Mrs. Campbell kept a large amount of money about the house. During her husband’s life they had manufactured and sold large quantities of wine on the premises. After his death, her sister testified to having seen $430 in her possession; she was known to have cashed checks and received money amounting to three or four hundred dollars; besides she hád kept at the house where she lived the remnant of a stock of groceries, from which she sold to neighbors who came there from time to time for the purpose of buying. The amount of money she received for these groceries is not shown. After her death $69 was found hidden in a can on her premises. She lived alone in a house in New Frankfort, where her body was found on the eighth of January, 1917. She had been killed by a pistol shot which was fired into the back of her head.

It was the theory of the State that Mrs. Campbell was killed Saturday, January 6, 1917, at an early hour in the evening. One Rufus Kemper, who testified for the State, said he went to see her about 5:30 o’clock that afternoon, in regard to the sale of her place; that then she was in apparent good health; he stayed only about fifteen or twenty minutes. He was accompanied by a boy by the name of Press Givens.

One Forrest Kalinka visited Mrs. Campbell’s house Friday, January 5th, and-arranged with her to borrow her cart. He returned for the cart about ten o’clock Sunday morning, January 7th. He knocked but was unable to make anybody hear, and called to Mrs. Campbell loud enough to be heard by anyone in the house, without receiving any response. He then took the cart and went away with it. On Monday, the eighth, Mrs. Campbell’s body was discovered. Two boys, who were witnesses, testified to hearing one or more shots about dark or soon after, Saturday night, in the direction of Mrs. Campbell’s house. It was impossible for the physician, who examined the body when found, to state whether she had been dead exceeding eight hours or not, but she might have been dead two or three days.

When found, deceased had on her night dress, but over her underclothes, and the bed in the room in which she was found had not been disturbed or turned down; the furniture in the room was undisturbed.

The defendant, James W. Garrett, was a nephew of the deceased. Until a few months before the murder he had lived and conducted a sort of restaurant in Salisbury, in Chariton County. After his wife died he moved to Moberly, and was living there with a married daughter at the time of the death of Mrs. Campbell. After his removal to Moberly he had visited his aunt, Mrs. Campbell, and appeared to be interested in her business affairs. He stated to several persons that he was trying to get her to sell her property and move to Moberly to live with him. A number of witnesses testified that he had said to them she would be found dead in her house some day. Some of these statements indicated that he expected her to be murderd for her money, and others that he expected her to be killed by an overdose of morphine. Garrett was a poor man and there was no .indication of his having had money of any consequence prior to the death of his aunt. On the 5th of January, 1917, he went to several of his friends and relatives in Moberly and endeavored to borrow a pistol, saying that he was going to Higbee to buy a hotel and didn’t wish to stay away all night without one. He was unable to borrow one. He was seen to take the train going south on the M., K. & T. Railroad about 11:30’ a. m., January 6th. This train connected at Higbee, a few miles from Moberly, with the C. & A. going west, which crosses the Missouri River into Saline County and runs through the towns of Gilliam and Slater. Gilliam is about six miles from New Frankfort, where Mrs. Campbell lived, and Slater is a station about three miles west of Gilliam. The C. & A. passed through Higbee going toward Slater about three or four o’clock in the afternoon. Several witnesses swore to having seen Garrett on the Chicago & Alton train Saturday afternoon, and some testified to having seen him get off the train at Gilliam and to having heard him inquire for a livery stable. That was about 5:30 p. m. He was directed to the livery stable of Robert Ayres. A man answering his description appeared at that livery stable, hired a horse and rode off on it; he said he was going to Babbler’s place to see a man named John Skinner; he said he lived at Salisbury and gave his name as Winkler. Babbler’s place was within a mile of New Frankfort; it was shown that no one by the name of John Skinner lived on Babbler’s place, and no one by the name of Winkler lived in Salisbury.

One witness testified to having seen the defendant ride out of Gilliam on horseback that afternoon. The same man who hired the horse returned with it about 8:45 p. m., and the defendant was identified as that man by two or three witnesses who happened to be at the livery stable. He asked when the train going north would come and was told it would be midnight. He said it was a long time to wait, and disappeared.

Two or three witnesses who boarded the eastbound train at Slater, three miles west of Gilliam, near midnight, testified that defendant got on the train at that point. These witnesses had waited at the Slater depot for the train and did not see him enter the station. They saw him get on the train, appearing, it seems, from somewhere outside.

He attended the funeral of his aunt on the 9th of January, was drinking a good deal, and appeared to be very nervous. He also appeared to be nervous in Moberly on the 8th, on which day some witnesses swore to having seen him with large sums of money. He was arrested on the day of the funeral and. had $328 in bills on his person. He then said to the sheriff that it was the proceeds of the sale of his restaurant in Salisbury, and later said to the deputy sheriff that it was his son’s money.

The horse which Ayres hired to Garrett was unshod, and its feet had been broken in a way to make its tracks peculiar. The horse was well known in the neighborhood, having carried the mail on the route going out from Gilliam. It was recognized by one witness just after dark, by moonlight, on the sixth, about two and a half miles from Gilliam on the road to New Frankfort, ridden at the time by a man who answered the description of the defendant. Leading up to the barn on the premises where the deceased had lived, and leading away from it, were the. tracks of a barefoot horse. These tracks showed that the left forefoot had a notch broken out of it, and the right hind foot was broken off at the toe, making it square at the front. That condition corresponded to the defects in the right hind foot and the left forefoot of Ayres’s horse. Some of these tracks' were in soft ground and had retained their shape. The horse was brought over from Gilliam to New Frankfort, his left forefoot and right hind foot inserted into two of the tracks mentioned, and both fitted exactly. This experiment was made in the presence of a number of witnesses.

When arrested the defendant protested his innocence, said he was all day on the sixth at his daughter’s home in Moberly, and in the evening at the home of some friends named Bell. He also said he knew who did commit the crime and would lay his hand on the guilty person as soon as his own trial was over. At the trial he produced two witnesses who testified that they saw him eat his dinner in Moberly at a restaurant — which one of them ran and in which the other one was employed — between 3:20 and 4 o’clock, Saturday afternoon, the sixth. None of his relatives or friends with whom he claimed, when arrested, to have been on Saturday, were offered as witnesses in his behalf to support his defense of alibi.

I. When the case was called for trial the defendant filed a motion asking the court to order the appoint ■ ment of an elisor to summon the jury, on the ground that the sheriff was prejudiced. The motion was sustained, an elisor appointed and qualified, and eusm. cagg conj.j:me(j until the succeeding term. At the succeeding term, the elisor was ordered to summon the jury panel, and the following appears in the record of that day:

“Counsel for defendant objected to the court directing the elisor to call any of the jurors summoned on the regular panel for this term of court for service as jurors in this case [all but seven of whom had been previously excused by the court] for the reason that the court nor any other person should suggest to the elisor whom he' should call.

“Objection overruled by the court and defendant excepted to the ruling.”

To this ruling error is assigned.

It is unnecessary to consider the merits of this assignment. A transcript of the record proper shows that the elisor made a return of his venire giving the names of the panel of forty jurors who were impaneled and sworn. There is nothing in the record to show that the court gave any direction whatever to the elisor as to whom he should summon, nor that any of the regular panel objected to were on the list.

II. Objection is made to a cautionary instruction on the credibility of witnesses which told the jury that in determining the weight, value and credit to be given the testimony of any witness they may “take “do consideration his or her interest, if any, result from the trial, and his or her feeling for or relation to the defendant.”

It is claimed that the instruction directed attention alone to the witnesses for the defendant, and did not include witnesses for the State. A similar instruction was approved by this court in the case- of State v. Miller, 190 Mo. 1. c. 461. The statement, “feeling for or relation to the defendant,” would include a relation of antagonism as well as of friendship; it would apply to all witnesses who testified, for or against the defendant, and was not likely to be misunderstood by the jury.

III. Appellant complains of the giving by the court of instruction Number Six at the request of the State, which is as follows:

“The court instructs the jury that it is not necessary to prove the defendant’s guilt by testimony of witnesses who may have seen the offense committed. The court further instructs the jury that if certain facts and circumstances are proved ■ by the State, from which facts and circumstances the jury may infer other and connected facts which usually and reasonably follow according to the common experiences of mankind, and that such facts and circumstances are consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of the defend- • ant’s innocence, and that such facts and circumstances have been proven so as to satisfy the minds and consciences of the jury beyond a reasonable doubt that the defendant willfully, feloniously, deliberately, premeditatedly, on purpose and of malice aforethought did kill Sarah Campbell, the deceased person testified to in evidence herein, then the jury are warranted to find the defendant guilty as charged in the information, and assess his punishment as defined in other instructions filed herein, though no witness has testified of his own knowledge as to the actual fact of such killing.”

The instruction is awkwardly expressed and mixes a definition of circumstantial evidence (State v. Bauerle, 145 Mo. l. c. 16) with a direction to the jury as to what they should find in order to convict. It is insisted that it is in such form as certainly to mislead the jury as to the effect of circumstantial evidence. The precise objection to it is that it permits the jury to infer certain facts from facts proven and from those inferences deduct a further inference of guilt — an inference from an inference. We think the instruction is not susceptible of that construction. It says, “if certain facts and circumstances ’ ’ are proved by the State from which facts and circumstances the jury “may infer other and connected facts” which usually and reasonably follow according to the common experience of mankind; and, if such “facts and circumstances” are consistent with each other and with the guilt of the defendant and inconsistent with any theories of his innocence; and, that such “facts and circumstances have been proven so as to satisfy the mind and conscience of the jury beyond reasonable doubt,” etc.

It is clear that the “facts and circumstances” which must be consistent with each other and with the guilt of the defendant and inconsistent with his innocence so as to satisfy the jury of defendant’s guilt are the facts and circumstances which must be proven and not the “other and connected facts” which may be inferred. The instruction is not open to the objection presented, although the principle might be expressed much more clearly. If there was any danger of it misleading the jury by reason of its involved expression, that danger was removed entirely by two instructions given at the instance of defendant, which clearly defined circumstantial evidence and the conclusions that might be drawn from it, as such definition has been approved by this court in the case last cited.

IV. In instructing the jury the trial court used words descriptive of the offense, “unlawfully, willfully, feloniously, deliberately, premeditatedly and of malice aforethought,” and defined each term excep.j. yie worq “deliberately.” Defendant asked an instruction which defined each of the terms comprising the constituent elements entering into murder in the first degree, including “deliberately,” and that instruction was refused. Error is assigned to the ruling of the court in that regard.

Deliberation is one of the essential elements which enters into the commission of the crime of murder in the first degree and frequently it has been so recognized and defined by this court. [State v. Spaugh, 200 Mo. l. c. 606-7; State v. Davis, 226 Mo. 515.] It is claimed by the State that inasmuch as there was evidence which tended to show the crime was committed in the attempt to perpetrate robbery, it was unnecessary to prove or require a finding of deliberation. It is true Section 4448, Revised Statutes 1909, makes homicide murder in the first degree when committed in the perpetration of, or attempt to perpetrate, robbery or any of the other felonies mentioned. In such case proof of deliberation is unnecessary. The commission of, or attempt to commit, such felony stands, under the statute, as the “legal equivalent” of premeditation and deliberation. [State v. Bobbitt, 215 Mo. l. c. 33; State v. Daly, 210 Mo. l. c. 679; State v. Myers, 99 Mo. l. c. 113; State v. Foster, 136 Mo. 653.] It was necessary for the jury to find, either that the act was committed deliberately, or, that it was committed in an attempt to perpetrate, or in the perpetration of, robbery. There was some evidence in this ease tending to show the homicide was committed in the perpetration of robbery, but no instruction was given by the court requiring the jury so to find, and it cannot be said that they found robbery was attempted or perpetrated. Therefore, it remains that they must have been required to find that the murder was deliberate.

But it is claimed by the State, since all the evidence tends to show the act was done deliberately, and none tends to show a want of deliberation, the finding by the jury of deliberation was unecessary and a definition of the term was not required. It is true there are some cases in which this court has affirmed convictions of murder in the first degree where there was an imperfect definition of deliberately. [State v. Furgerson, 162 Mo. 668, l. c. 677; Id. 152 Mo. l. c. 96; State v. Jackson, 167 Mo. 291; State v. Tettaton, 159 Mo. 377-8. [ In each of those cases the definition of “deliberately” was faulty in that it omitted some element. It was held that inasmuch as there was no evidence which tended to show the crime was committed under circumstances which would reduce it to a lower grade of offense than murder in the first degree, the error in the definition of deliberately was harmless. These cases follow the cases of State v. Ellis, 74 Mo. 207, l. c. 221; State v. Kotovsky, 74 Mo. 247, and State v. Ward, 74 Mo. 253. In each of the cases last cited 'the evidence showed exactly how the deed was done and showed affirmatively that the homicide was committed deliberately, and affirmatively showed it conld not have been committed in any other way than deliberately. The same may be said in the case of State v. Jackson, 'supra, opinion written by Burgess, J. In each of the cases of State v. Tettaton and State v. Furgerson, supra, there was no eye-witness to the homicide and from the meager facts given it is possible to infer that because there was no affirmative evidence to show a lower grade of offense than murder in the first degree the court held a proper definition of “deliberately” was unnecessary. It never has been held, in any case brought to our attention, that no definition at all would be harmless, even in a case of that kind. .

In establishing the guilt of a defandant charged with a crime it is essential to prove every constituent element of the crime charged. [State v. Langley, 248 Mo. 545, l. c. 553; State v. Daly, 210 Mo. 679.] The term “deliberation” or “deliberately,” has a special significance in defining the crime of murder. The lay mind would not be likely to distinguish “deliberation” from “premeditation.” In some jurisdictions the words deliberation and premeditation, used in defining the crime, are held to be synonymous. [Words and Phrases, “Deliberation.”] But our statute makes deliberation the distinctive quality which separates murder in the first degree from murder in the second degree; murder in the second degree requires premeditation, but not deliberation. For that reason deliberation, as well as premeditation, must be proved and found by the jury in order to convict a defendant of murder in the first degree. The jury must be instructed how to find it. [State v. Hill, 69 Mo. 451; State v. Mitchell, 64 Mo. 191; State v. Dearing, 65 Mo. 530; State v. Daly, 210 Mo. l. c. 679; State v. Simms, 71 Mo. 538, l. c. 540.] If the decisions in the Furgerson case and the Jackson case, and the cases grouped with them, supra, may he interpreted to hold that the absence of evidence which might reduce the crime to a lower grade than murder in the first degree, would render a finding of deliberation unnecessary and a definition of the term superflous, then they are in conflict with the group of cases last cited.

Since every element of a crime must be proven in order to convict, and since deliberation is an essential element of murder in the first degree, it must be proved and found by the jury under proper instruction like any other fact. Does the absence of evidence upon which to predicate an instruction for murder in the second degree warrant a refusal to instruct fully as to murder in the first degree or obviate the necessity of defining the terms used in describing it? Though all the evidence tended to show murder in the first degree and nothing else, the jury was not relieved of the necessity of finding all the facts, and the court was bound to instruct them properly as to what they must find in order to convict.

For the reasons mentioned, the failure to define the term “deliberately” was error, for which the judgment, must be reversed and the cause remanded.

It is so ordered.

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

All of the judges concur.


text:
    THE STATE v. T. G. CAPERTON, Appellant.
    Division Two,
    December 23, 1918.
    1. GRAND JURY: Compelled Perjury. The law governing inquisitions does not contemplate that an accused person, whose alleged crime is at the time the subject of inquiry, may be compelled to come before the grand jury, and there, in secret and on oath, without counsel or friends, be required either to confess his guilt or commit perjury. The least that can be said of such a proceeding, by which defendant was induced to perjure himself, is that the State, in thus compelling either a sworn confession of guilt or perjury.* is morally an aider and abettor of the perjury.
    2. PERJURY: Compelled by Grand Jury: Confession Inadmissible. Statements made by an accused person whose alleged crime is at the time the subject of inquiry by the grand jury, unless he was advised at the time that it was his privilege not to testify unless he wished to do so, or unless they are shown by evidence aliunde to have been voluntary, are not admissible against him in a subsequent trial for perjury committed in his answers to such . inquiry; and if timely objection is made to such statements, members of the grand jury cannot in the perjury trial testify to them.
    3.--: Instruction: What Defendant Said Against Himself Presumptively True. An instruction in a perjury case, which tells the jury that “what defendant said against himself, if anything, the law presumes to be true, because said against himself,” is reversible error. It is also in direct conflict with the usual instruction in a trial for perjury, that before a conviction can be had there must be two witnesses, or one witness corroborated by circumstances, to prove the. falsity of defendant’s. oath. It has itniformily been held error in prosecutions for perjury.
    Appeal from Howell Circuit Court. — Hon. E. P. Dorris, Judge.
    Reversed and remanded.

      W. N. Evans for appellants.
    (1) By Secs. 8284, 8285, 8286, 8287 and 8288, R. S. 1909, a marriage license in Missouri is issued and certified by tbe Recorder of Deeds and it will be presumed until the contrary is proven that a marriage license in the State of Tennessee would be issued by the same officer, and this court will not be authorized to consider such certificate as evidence in this cause. Flato v. Mulhall, 72 Mo. 522; Davis v. MeColl, 179 Mo. App. 203; Liquor Company v. Railroad, .182 Mo. App. 1; Baker v. Railroad, 187 Mo. App. 161; Thompson v. Railroad, 243 Mo. 336. (2) The court erred in giving instruction numbered 5, for the reason that it is a comment on the defendant’s statements as proven by other witnesses and tells the jury that they must consider statements made by the defendant, if any, when it is uniformly held in this State that statements or admissions made by the defendant cannot be considered as corroboi’ative evidence in a perjury case. State v. Thornton, 245 Mo. 436; State v. Rhoten, 259 Mo. 424; State v. Hunter, 181 Mo. 317. (3) The court erred in submitting this case to the jury for the reason, first, that there is no evidence of any witness to the effect that the testimony of the defendant before the grand jury was false. The only evidence that could be considered in that light is the certificate from the Clerk of the County Court of Shelby County, Tennessee, to the effect that defendant was married to Minnie King on the 2nd day of June, 1917, and there being no foundation for the introduction of this certificate, it was not evidence at all of any fact. Besides in a perjury case the evidence of a single witness must be corroborated by one or more witnesses before it is sufficient to authorize the court to submit it to the jury, and this must be proved aside from any statement made by the defendant. State v. Faulkner, 175 Mo. 546; State v. Thornton, 245 Mo. 436; State v. Rhoten, 259 Mo. 424; State v. Hunter, 181 Mo. 317.

      Frank W. McAllister, Attorney-General, 8. E. Shelley, Assistant Attorney-General, for respondent.
    (1) No error was committed by the court in allowing the introduction of the certificate of the ‘ Clerk of the County Court of Shelby County, Tennessee, to marriage license with return thereon to T. G. Caperton and Minnie King. Said certificate, sufficiently authenticated, in accordance with Act of Congress and Statutes of Missouri, was properly admitted. R. S. 1909, sec. 6293; Act of Congress, R. S. 1909, Appendix, p. 3711. (2) Instruction number 5 is substantial in form approved by this court. State v. Howell, 117 Mo. 344; State v.Wisdom, 119 Mo. 552; State v. Cushenberry, 157 Mo. 188. But see: State v. Williams, 30 Mo. 367; State v. Hunter, 181 Mo. 338.
   FARIS, J.

Defendant was convicted in the circuit court of Howell County upon an information charging him with perjury, and his punishment fixed hy the trial jury at imprisonment in the penitentiary for a term of two years. From this conviction, after the usual motions for a new trial and in arrest of judgment, he has appealed.

The facts are few and simple, and so far as these facts are necessary to make clear the legal questions involved in this appeal they run substantially thus: Prior to the filing of the information upon which defendant was convicted, and on or about the 31st day of May, 1917, the grand jury of Howell County had under inquiry the question whether defendant and one Minnie King were living together in Howell County in open and notorious adultery. During their investigation of this question they caused to come before them this defendant, who, after being duly sworn, was asked bv a member of the grand jury whether he and the said Minnie King were married to each other. To this question he answered in substance that he was married to Minnie King, that he had been married to her at Memphis, Tennessee, on the 22nd day of January, 1917. Some three or four witnesses who had been members of the grand jury of Howell County when the defendant was called before them, appeared as witnesses upon the trial of the instant case and testified touching the matter which was under investigation, the question which was propounded to defendant and his answer thereto.

Upon the trial of this case the State offered a certified copy of a paper purporting to be a marriage license issued to T. G. Caperton and Minnie King, together with the return thereon, showing due solemnization of a marriaee between these parties by a minister of the Gospel. This copy of this marriage license was duly authenticated under the Federal statute. It was issued by the Clerk of the County Court of Shelby County, Tennessee, being the county in which the city of Memphis, is situated, and was authenticated by the Clerk, and by the Presiding Judge, of the County Court of said Shelby County, under the seal of that court. It was issued, and the marriage authorized to be performed thereunder was performed, on the 2nd day of June, 1917, some two or three days subsequent to the date at which the defendant had appeared before the grand jury of Howell County, and had sworn that he had been married to Minnie King on the 22nd day of January, 1917.

There was also offered on the part of the State an extra-judicial admission on the part of defendant, which he is said to have made at the time of his arrest, which occurred near the state-line between Missouri and Arkansas. Upon his arrest he had asked to be permitted to cross over into Arkansas and get his wife, who was across the state-line in the latter State. The officer having him in charge objected, saying that if he should permit defendant to get into a foreign State he might have trouble in getting him back without a requisition. Thereupon defendant promised the officer that he would return, saying, in this connection: “I am not going to cause you any trouble. If I did swear a lie up there I will not tell you one. I will come right back with you.” This was practically all of the testimony offered on the part of the State. Defendant upon his part offered no testimony, except that of one witness who was present at the time of defendant’s arrest, and who denied having heard defendant make the extrajudicial statement above set out.

The above facts are sufficient to make clear all of the questions which we find it necessary to discuss. If, however, these propositions shall require the setting out of further facts these facts will be found in our opinion.

This case presents a condition which is seemingly sui generis. As a basis for this prosecution defendant was haled before a grand jury of his county and there under oath compelled to answer certain ques-truthful answers to which would (as the State is now here insisting) have required a confession of Ms gnilt of another crime then under investigation hy this jury. When defendant was thus compelled by these proceedings before the grand jury, either to “confess and be hanged” or to swear a lie, he took refuge (again, as the State now here contends) in the latter alternative. Promptly he was indicted for perjury and this prosecution and conviction followed.

It is plain to be seen that the inquisition whereat the alleged perjury was committed was in a most serious aspect a violation of defendant’s constitutional right not to be compelled to testify against himself. [Sec. 23, Art. 2, Cons. Mo.; State v. Young, 119 Mo. 495; State v. Faulkner, 175 Mo. 546; State v. Thornton, 245 Mo. 436.] The least that may be said of the proceedings by which this defendant was induced to perjure himself is that the State in thus compelling either a sworn confession or perjury, was morally an aider and abettor in the perjury charged.

The law which governs inquisitions before grand juries does not contemplate that an accused person, whose alleged crimes are at the time the subject of inquiry, may be compelled to come before such a jury and there in secret and on oath, without counsel or friends, be required either to confess his guilt or to commit perjury. [State v. Thornton, 245 Mo. l. c. 440.] No objection was made that defendant’s testimony before the grand jury being involuntary was inadmissible, but so much is said in palliation of defendant’s guilt, if in fact he be guilty, and in criticism of the proceeding adopted to compel him to commit the crime herein complained of.

No person whose alleged crimes are under investigation by a grand jury ought to be haled unwillingly before that body and questioned as to such crimes. If an accused whose acts are under inquiry for the purpose of presenting an indictment against him should, pending such inquisition and of his own volition, ask to be allowed to appear as a witness, he ought to be advised that it is his privilege not to testify unless he wants to do so, and that anything he many say may be used

against him. [State v. Faulkner, 175 Mo. l. c. 611.] Therefore an objection that the statement made by the defendant before the grand jury was inadmissible against him in this case, unless and until such statement was shown by evidence aliunde to have been voluntary, had it been timely made, ought to have been sustained.

Complaint is made that instruction five ought not to have been given for the State. This instruction reads thus:

“If you believe from the evidence that the defendant prior to this trial, made any statement or statements concerning the alleged offense, then you may consider such statement or statements in evidence, but you should consider them all together, and also the circumstances under which they were made. The defendant is entitled to the benefit of what he said for himself, and the State to the benefit of what he said, if anything, against himself. What the defendant said against himself, if anything, the law presumes to be true, because said against himself. What he said for himself you are not bound to believe, because said in a statement or statements proved by the State; but you may believe it or disbelieve it, as it is shown to be true or false by all the evidence in the case. It is for you to consider under all the circumstances from the evidence, how much of the whole statement or statements of the defendant proved by the State is worthy of belief. But before giving any such statement of defendant any consideration, you must be satisfied that such statement was made concerning the alleged crime, and you should also receive the same with care and caution, and be satisfied that it was correctly given or repeated in evidence, before giving any weight or consideration to same.”

The giving of the above instruction in ordinary cases has been repeatedly upheld by this court. [State v. Howell, 117 Mo. l. c. 344; State v. Wisdom, 119 Mo. l. c. 552; State v. Cushenberry, 157 Mo. l. c. 188; State v. Niberger, 255 Mo. 289), though often and in a number of cases severely criticised as a hurtful comment on the evidence. Nevertheless, for reasons which are clearly and convincingly set ont in the ruled cases, the giving of this instruction in a trial for perjury has been uniformly held to be error. [State v. Williams, 30 Mo. l. c. 367; State v. Hunter, 181 Mo. l. c. 338.] As was so clearly pointed out in the case of State v. Williams, supra, the language of the above instruction that “what the defendant said against himself,- if anything, the law presumes to be true because said against himself” is in direct conflict with the settled rule in prosecutions for perjury, and with instruction four given in this case, that before a conviction can be had there must be two witnesses, or one witness corroborated by circumstances to prove the falsity of defendant’s oath. [State v. Blize, 111 Mo. l. c. 469; Kelley’s Crim. Law & Proc., see. 83L] If therefore, as this instruction succinctly states, lohat defendant said against himself is presumed to he true, the jury might well be warranted in concluding that they are permitted to find defendant guilty solely upon his own extra-judicial statements.

Other points are urged upon our attention, but since the case must be reversed and remanded for the error noted, we need not consume time or space in discussing these. The facts of the case considered, it is not likely that these other alleged errors will cut any figure upon the next trial. Let the case be reversed and remanded for a new trial consistent with what we have written herein.

All concur.