author: RAILEY, C. DAVID E. BLAIR, J.

text:
    THE STATE v. CHARLES FRANKLIN ALLEN, Appellant.
    Division Two,
    November 19, 1921.
    1.’ MANSLAUGHTER: Malice: Sudden Passion: Instruction. Where defendant wrote deceased (his wife’s foster mother) that if she ever placed her foot in his yard he would blow her brains out, which of itself clearly indicated malice aforethought, and the next day, as he came around the house, he discovered her standing in the highway, near his gate, where for fifteen or twenty minutes she had been talkipg with Ms wife, and when she began, tQ c.ursa him he laid down a hammer and went to 'his wife and ashed her to go to the house, and deceased struck at him with a cane, and after he and his wife entered the house he secured his shotgun and shot deceased while she was still in the liighway, twenty-five feet or more distant from him, no instruction for manslaughter in any degree should have been given, and one telling the jury that if defendant intentionally shot deceased whilst in a violent passion suddenly aroused by reason of her having assaulted him with a cane, and if said shooting was not done in self-defense and was not done with malice hut was the result of such passion, defendant should be found guilty of manslaughter in the fourth degree, was properly refused.
    2. MURDER; Malice: Use of Deadly Weapon: Presumption of Malice. Where defendant admitted the shooting of deceased with a shotgun, hut claimed justification and there were no eye witnesses except defendant and his wife, an instruction on the presumption of malice arising from the use of a deadly weapon .upon another at some vital point is proper. In such case it was proper to instruct, the jury that he who wilfully uses upon another at some vital part a deadly weapon, such as a .shotgun, loaded with powder and leaden bullets, must, in the absence of qualifying facts, he presumed to know that the effect is likely to produce death, and knowing this must be presumed to intend death as the probable and ordinary consequence of such act, and if such deadly weapon is used without just cause or provocation he must be presumed to do it wickedly and from a bad heart.
    3. EVIDENCE: Exhibition of Bloody Clothes. Where the record recites a statement by the trial judge that the garments of deceased ■were not exhibited to the jury and that those which were bloodstained were covered with others on which there was no blood, and that he thereupon directed them to be removed from the courtroom, and the undisputed evidence is that defendant wrote a letter threatening to kill deceased if she’ came upon his premises, and shot her as she stood in the public highway in front of his gate, cursing him, and the jury gave him the lowest punishment possible under the instructions, he has no just ground to complain on appeal that the court permitted the bloody garments of deceased to be exhibited before the jury or to remain in plain view of the jury.
    4. -: Self-Serving Declarations: Res Gestae. Self-serving declarations of defendant, made in the absence of deceased, are not competent evidence. Where both defendant and his wife were permitted to testify fully as to everything that occurred and was said in the presence of deceased, and his wife was permitted to testify what she said to defendant concerning the threats made by deceased, in his 'absence, what defendant said to his wife, in the absence of deceased, at the time his wife repeated deceased’s threats, is no part of the res gestae, and is not competent.
    5. -: Uncommunicated Threats. It is not error to refuse to permit a witness to testify that she had a conversation with deceased at the time defendant’s child was born, in which deceased said she had often tried to get defendant’s wife to produce an abortion and destroy the child and that she did not propose that such child should live, where the subject-matter of said conversation was not communicated to defendant.
    6. REMARKS OF COURT: Protection of Wife aid Child. Where the statements of deceased concerning defendant's child were incompetent, because not communicated to defendant, and defendant’s counsel urged their competency “on the theory that a man has the same right to protect his wife and child that he has himself,” a remark by the court that “such may be true, but the defendant has been on the stand and dosen’t show in his testimony that it was in the protection of his wife and child that the shot was fired,” was not prejudicial, the defendant having testified that as deceased approached him he thought she had a gun or something in her hand and he thereupon shot her, his wife and child not being present.
    7. INSTRUCTIONS: Refusing Defendant’s. Where the instructions given for the State clearly and correctly state all the l£w necessary for the jury to consider, it is not error to refuse others asked by defendant.
    8. EVIDENCE: Wife as Witness: Testimony Before Coroner: Impeachment. The testimony of defendant’s wife voluntarily given before the coroner may be used at the trial, on cross-examination, for the purposes of contradiction and impeachment, as to any matter referred to at the trial; and it is not incumbent upon the State, in offering her said testimony- for such purpose, to show that she had been advised she could decline to testify, but a showing that she testified of her own volition is made by a recital, in the transcribed and signed testimony of the witnesses at the inquest, that she “voluntarily testified as a witness without objection, and at her own instance was recalled to enable her to give additional “testimony,”, and such recital, it uncontradicted, must be taken as true.
    9. -: -: —-: -: As Other Witnesses. The wife of defendant, who is his principal witness and testifies to every phase Of the case, stands upon the same plane as any other witness and is liable to impeachment in the same way; and if she made material statements out of court which were in conflict with her testimony at the trial, whether made at the coroner’s inquest or elsewhere, the State is entitled to use them.

      Appeal from Grundy Circuit Court. — Now. L. B. Woods, Judge.
    AFFIRMED.

      Lesley P. Robinson, J. D. Alim and PL. E. Thompson for appellant.
    (1) The trial court erred in refusing defendant’s offered instruction numbered eleven on manslaughter and erred in failing and refusing to instruct properly on manslaughter. State v. Turner, 246 Mo. 598; State v. Conley, 255 Mo. 185; State v. Wilson, 242 Mo. 481; State v. Sebastian, 215 Mo. 59; State v. Hanson, 231 Mo. 14; State v. Heath, 221 Mo. 565; State v. Gordon, 191 Mo. 114; State v. Vest, 254 Mo. 466; State v. Grugin, 147 Mo. 39, 50; State v. Brown, 188 Mo. 451; State v. Mer-mann, 117 Mo. 629; State v. Winsell, 98 Mo. 137; State v. Wilson, 250 Mo. 329; State v. Whitsett, 232 Mo. 529; State v. Good, 271 Mo. 49; State v. Beckner, 194 Mo. 299; State v. Nelson, 166 Mo. 191; State v. Spencer, 160 Mo, 123; State v. Dorn, 202 Mo. 12; 21 Cyc. 972; Kelly’s Criminal Law, sec. 250. (2) The trial court erred in giving the State’s instruction numbered nine on the presumption of guilt. State v. Swearingen, 269 Mo. 177; State v. Cole, 213 S. W. 110; State v. Stubblefield, 239 Mo. 530; State v. Garret, 207 S. W. 784; State v. Burns, 213 S. W. 114; State v. Wansong, 217 Mo. 50, 58; State v. Frame, 204 S. W. 8; State v. Sloan, 207 S. W. 782; State v. Little, 228 S. W. 797. (3) The trial court erred in permitting the bloody garments of the deceased to be exhibited before the jury, and erred in leaving them before the jury during the afternoon session, and during the night session, and also during a portion of the morning session of the court in plain view of a number of the jurors all the time, and all of them while passing in and out of the jury box. State v. Porter, 276 Mo. 388; State v. Edelen, 231 S. W. 588. (4) The trial court erred in refusing to allow the wife of defendant to testify as to what she told defendant in the house as to the threats and conduct of deceased immediately prior to their entering the house, and what defendant said when starting out with the gun, as evidence of his intentions, and his state of mind, all of which was a part of the res gestae. State v. Reaves, 195 S. W. 1030; State v. Vest, 254 Mo. 1. c. 466; State v. Cruts, 231 S. W. 606; State v. Anderson, 252 Mo. 98. (5) The trial court erred in refusing defendant’s offer of evidence to the effect that on the day the baby was born as well as before, that she (deceased) did not propose that the baby should live. State v. Burns, 213 S. W. 117. (6) (a) The court erred in stating within the hearing of the jury that “defendant has been-on the stand and don’t’show in his testimony that it was in the. protection of his wife and child the shot was fired.” (b) And also erred in making these remarks toi counsel for defendant for objecting to the presence of bloody clothes: “and the court sees no reason at this time in order to gratify the wish of the attorney,” as being prejudicial to defendant and counsel. Rose v. Kansas City, 125 Mo. App. 236; 'Wright v. Richmond, 21 Mo. App. 81; State v. Hyde, 234 Mo. 200, 255; Padgett v. Ry., 159 Mo. 155; Schmidt v. Railroad, 149 Mo. 283; State v. Davis, 217 S. W. 91; Landers v. Railroad, 134 Mo. App. 80; 38 Cyc. 1316; R. S. 1919, sec. 4037. (7) The court erred in not giving defendant instructions 1, 2, 3, 4, and 5, and instruction 11, being approved instructions, on defendant’s theory of his case, and erred in its attempt to cover defendant’s facts in instructions asked by the State. (8) The trial court erred in admitting in evidence the testimony of Lea Allen, wife of defendant, taken at the inquest, and erred in permitting the State to cross-examine her at the trial on her testimony obtained at the inquest; for the reason she was not advised that she may not testify, having then no counsel, hut was placed on the stand by the coroner (or State) and compelled to testify. R. S. 1919, sec. 4036.

      Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
    (1) The court did not commit error in permitting the bloody garments, worn by deceased at the time of the killing, to be brought into the courtroom and in permitting same to remain therein exposed (if exposed) to the jury’s view. At the trial of a case, such as the one at bar, it is proper to admit in evidence and permit the jury to inspect clothing worn by deceased at the time of the killing. State v. Stair, 87 Mp: 268. Evidence of this character is, in the discretion of the court, admissible, although the corpus delicti is admitted, to show the nature of the wound or to throw any relevant light upon a material matter at issue. State v. Porter, 276 Mo. 387, 396; State v. Long, 209, Mo. 366, 382; State v. Miles, 199 Mo. 530, 546; State v. Thornhill, 177 Mo. 691. (2) The court did not commit error in admitting in evidence ‘the testimony taken at the coroner’s inquest, (a) Statements made by a witness when testifying at the coroner’s inquest may be admitted in evidence to impeach him. People v. Bushton, 80 Oal. 160; State v. Dixon, 131 N. C. 808; People v. Hawley, 111 Cal. 78, 88; State v. Eddings, 71 .Mo. 545; State v. Jefferson, 77 Mo. 136. (b) Defendant’s wife was not improperly cross-examined at the trial on her testimony given at the inquest. (3) The trial court did not commit error in refusing-do admit testimony as to what defendant said in the house immediately prior to the fatal shooting. Such declaration was self-serving and no part of the res_ gestae. State v. Long, 201 Mo. 664, 674; State v. Atchley, 186 Mo. 174, 194; State v. Holcomb, 86 Mo. 371, 378; State v. Van Zant, 71 Mo. 541; State v. Shermer, 55 Mo. 83; Angus v. State, 29 Tex. App. 52, 61. (4) The court did not commit error in refusing defendant’s offer of evidence to the effect that on the day the baby was born as well as before, deceased said that she did not propose that this child should be raised by Lea Allen. Such testimony was clearly hearsay. State v. Wilson, 250 Mo. 323, 329; State v. McNanara, 212 Mo. 150, 163; State v. Pnnshon, 124 Mo. 448, 455. (5) Instruction 11, offered by the defendant and involving the subject-matter of manslaughter, was properly refused by the court. The existence of malice was not negatived by any of the testimony in the case. (a) “Manslaughter” is distinguished from murder solely by the absence of malice as a constituent element of the crime. State v. Hartley, 185 Mo. 669. (b) The mere fact of passion upon the part of a slayer will not reduce the homicide from murder to manslaughter where there was a previous purpose to kill. State v. Nelson, 101 Mo. 464; Collins v. United States, 150 U. S. 62, State v. Pankey, 104 N. C. 840. (c) Where the existence of deliberate malice in a.person who killed another is once ascertained, its continuance down to the perpetration of the meditated act must be presumed, unless there is evidence to repel it; there must be some evidence to show that the wicked purpose had been abandoned. State v. Johnson, 23 N. C. 354; State v. Tilly, 25 N. C. 424; Riggs v. State, 30 Miss. 635. (d) Where malice is shown to have been harbored, and a fresh provocation arises to the party cherishing the malice the provocation is to be disregarded unless the murderous purpose can be shown to have been abandoned before the act was done; because where provocation intervenes between expression of malice and the killing, the presumption is that the killing was upon the malice and not upon the passion produced by the provocation. State v. Dettmer, 124 Mo. 426, 435; State v. Wilson, 242 Mo. 481, 502. (6) The court did not commit error in giving instruction 9, on the presumption of guilt. Instructions in said form have been repeatedly approved by this court. State v. Sehmulbach, 243 Mo. 533; State v. Hudspeth, 159 Mo. 178,195; State v. Grant, 152 Mo. 57, 64. (7) The mere statement by the court as to what it understood a witness to testify to is not prejudicial when the witness had, in fact, testified as the court stated. State v. Ethridge, 188 Mo. 352; State v. May, 172 Mo. 630, 652; State v. Sanders, 76 Mo. 35; Traction Co. v. O’Neil, 109 Ya. 670; The Oriental v. Barclay, 16 Tex. Civ. App. 193; Olson.v. Sol-verson, 71 Wis. 663. (a) Statement by the court of the grounds of its ruling as to the competency of evidence is not objectionable as a comment on the evidence. State v. Ruck, 196 Mo. 416, 434; State v. Thomson, 155 Mo. 300. (8) The remarks of the court addressed to defendant’s counsel in replying to objection made to the presence of bloody clothes: “The court sees no reason at this time in order to gratify the wish of the attorney while the court thinks no harm doiie by them, to direct the sheriff to remove them,” is not reversible error. State v. Teeter, 239 Mo. 485; State v. Duestrow, 137 'Mo. 44, 88; State v. Musick, 101 Mo. 260, 273.
   RAILEY, C.

On November 6,1919, the prosecuting attorney of Grundy County, Missouri, filed, in the circuit court of said county, his verified information, charging defendant with murder in the first degree. It is allegéd therein that defendant feloniously, etc., shot and killed Leota Maírs, in said county, on October 13, 1919. On February 5, 1920, defendant waived a formal arraignment and entered a plea of not guilty. On February 7th, 1920, after a trial before a jury, the latter returned into court the following verdict:

“¥e, the jury, find the defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the State Penitentiary for a term of ten years.”

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, he was duly sentenced, and an appeal was granted him to this court.

As a matter of convenience, the defendant’s wife, will be designated in this statement as “Lea.”

The testimony on behalf of respondent tends to show substantially the following facts: That defendant, with the consent of deceased, married the latter’s minor foster daughter, called Lea Marrs, who was then about fifteen years of age; that after remaining at the home of deceased a day or two subsequently to said marriage, defendant and wife went to live upon a farm in that neighborhood; that they moved several times, and finally located ' on the Tucker-Waldon form, near the town of Brimson, in said county; that on October 13, 1919, the day of the killing,-deceased lived a short distance from the Waldon farm, and within the limits of Brimson; that some animosity existed between defendant and deceased on account of the alleged interference of the latter in defendant’s family affairs; that about midnight of October 12, 1919, appellant wrote and addressed a letter to deceased. The envelope on the outside, contained the following: “Mrs. OddieMyres, Brimson, Missouri.” Said envelope contained a letter, which reads as follows:

“Oddie: You have tried to cause trouble and it’s going to stop right now. I am warning you if I ever catch you put your foot in my yard I will blow your brains out, and I am going to see that Leah stays away from you. You might get to pay for, some of your talk.
“Frank Allen.”

It appears that this letter was received by-deceased on October 13, 1919; that about two days before the killing, Lea and her baby were at the home of deceased, where Lea was doing some sewiner, on the foster mother’s machine, and that afternoon, as Lea went home, the de'-ceased went with her and carried the baby; that Lea also borrowed, on this occasion, a dress from deceased, which is referred to hereafter in the testimony; that on receipt of above letter, the deceased called upon her neighbor, Mrs. James Bennett, and told her about the receipt of the letter; that she was advised by Mrs. Bennett not to go to defendant’s house.

The evidence tends to show that about dusk, on the evening of October 13, 1919, the deceased, who had been walking with a cane, on account of a wounded knee, .started toward the defendant’s house; that she was seen near4the gate opening from defendant’s premises on to the public highway; that shortly after she reached this position, two shots were fired, and shortly thereafter the deceased was found killed, about twenty-five or thirty feet from defendant’s house, and near the above mentioned gate.

Counsel for defendant, at the commencement of the trial, admitted in open court that defendant had shot and killed deceased.

After the shooting, defendant remained at his home, made no effort to escape, and was taken into custody by the officer.

The foregoing took place in Grundy County, Missouri.

The evidence in behalf of appellant took a wide range at the trial, and it is too voluminous to set out in detail here. It tends to show, in substance, that he was a hard working, industrious man, and had a good reputation for peace and quietude; that he and Lea Marrs, the foster child of deceased and her husband, were married May 26, 1918; that deceased attended the wedding and gave her consent to the marriage; that Lea’s mother was dead, and she was not related to deceased; that defendant and his wife moved to the Tucker-Waldon farm in May, 1919; that Melvin Richard Allen, minor child of defendant and Lea, was horn March 26, 1919; that Lea became in a family way about one month after her marriage.

The testimony of Lea tends to show, in substance, that deceased, who was shown to be a turbulent and quarrelsome woman, became angry at defendant and his wife when she found the latter was pregnant; that she insisted upon Lea producing an abortion, to get rid of said child; that she offered part of a parasol to Lea, to accomplish this purpose, and told her how to use it; that she furnished Lea some medicine to use for this purpose; that she urged Lea to jump off of a chair, or to accomplish the purpose in some other way, to get rid of the child; that Lea communicated the above facts to her husband; that deceased was opposed to Lea having children and repeatedly said she would get rid of the above child; that deceased, on various occasions, said she would kill the child, as well as defendant and his wife; that these threats were likewise communicated to defendant by his wife. Lea further testified that she was afraid of deceased, and visited her, as shown by the evidence, because she was afraid not to do so; that she was afraid deceased would kill the child -or herself and husband; that these matters were likewise communicated to the defendant; that after learning of these things, defendant was greatly distressed in mind and brooded over them; that he was constantly in a deep study, was absent-minded and was not like he had been formerly; that on October 12, 1919, when he wrote the note heretofore mentioned, he had been awake most of the night, was r.estless and could not sleep; that this continued until about two o’clock a. m., on the morning of October 13,1919, when he wrote deceased the foregoing note. Lea further testified that when deceased come to their house about dusk on the evening of October 13, 1919, she told Lea to bring the baby out where she was, near the gate; that deceased asked her where she had. been and, on being told that she had been to one of the Allens, the deceased then said, “Yes, you been to those d’n Allens again have you, I thought I told you not to go about them;” that deceased then asked for her dress and Lea went after it; that she returned with the dress and gave it to deceased; that the latter then started to take the letter, above mentioned, out of her pocket, and Lea told her she need not do that, as she had already seen it; that deceased then commenced cursing defendant, called him a s-b and asked Lea what she let him write that letter for; that deceased then said she came up to separate defendant and his wife; that if she could not do it one way, she could the other. Lea further testified that deceased then cursed defendant, and after being requested by her fo leave, said he, Lea and the baby could not stay together another night; that deceased started to take hold of the child, hut she (Lea) moved away and deceased then called him a d-n little brat; that deceased stood there talking in this way, about fifteen or twenty minutes, and defendant came around the east corner of the house; that deceased then asked him why he wrote that letter, and called him a s-b-; that he told her to go away; that she swore again, and said she did not have to; that defendant then asked his wife to go into the house and she did so; that.she (Lea) then told defendant that deceased had said she was going to kill him and the baby, and said that she meant it; that defendant then took the shotgun, stepped out doors, told deceased to go away, while she was halloaing and cursing him; that she heard defendant shoot and deceased kept on cursing and halloaing; that she (Lea) stepped to the door, saw deceased standing about the middle of the road, quite a way from the gate, and deceased made a dash for the gate; that she (Lea) stepped right back and heard defendant shoot again. •

The appellant testified, in substance, to practically the same facts as did his wife, in regard to what occurred before he went into the house and got his shotgun. He also testified that while he and his wife were at the gate with the deceased, the latter struck at him with the cane, and threatened to knock his brains out, as he went to the house with his wife; that deceased also said at that time that she was going to kill them, and that' was what she came for. The defendant testified as follows:

“Q. What did you do? A. I took the gun out and held it to scare her away. I held the gun in my hand this way (indicating) and she came over to the gate and I thought she had a gun, she had something in her hand, and I shot right through the gate.”

He testified, that he fired two shots close together without moving the gun; that he told her to go away; that she swore and said, “I am going to get you, that is what I came here for.”

The defendant was not cross-examined.

The defendant and his wife were the only parties present at the time of the shooting except the deceased. Other persons appeared on the scene shortly after the shooting, and -found the deceased dead, lying near the gate about twenty-five or thirty feet from defendant’s house. The dress above mentioned was lying near her, and the cane and her bonnet were close by. She was lying on her face, with part of her chin shot off, and had apparently fallen without any struggle.

A large number of witnesses testified that defendant had the reputation in that community of being a peaceable, law-abiding citizen. Some of the defendant’s witnesses testified that deceased had the reputation of being a turbulent and quarrelsome woman.

The State introduced in rebuttal the testimony of defendant’s wife, given at the coroner’s inquest, which tends to show that she did not relate the facts, in regard to the killing, as she stated them at the trial.

Such other facts as may be necessary, as well as the instructions and rulings of the court, will be considered in the opinion.

I. Rule 15 of this court, among other things, contains the following:

“The brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain in addition thereto: (1) A fair and concise statement of the facts of the case without reiteration, statements of law, or argument(Italics ours.)

The statement of appellant’s counsel in this case recites, as part of the testimony, matters which were excluded by the court. It is highly colored, and so exceedingly argumentative throughout as to be of little value to the court in making our statement of the case. We have, however, carefully read the transcript, and believe the facts are substantially covered in the foregoing statement.

II. Appellant’s first assignment of error, reads as follows: ...

“The trial court erred in refusing defendant’s offered instruction numbered eleven on man- , , , , -, n • slaughter and erred m tailing and refusing to instruct properly on manslaughter.”

The above instruction reads as follows:

“The court instructs the jury that if you believe from the evidence that tbe defendant intentionally shot and killed Leota Marrs whilst in a violent passion suddenly aroused, by reason of the said Leota Marrs having assaulted and struck_defendant with a cane, and by making violent threats to kill defendant or his child, and by making contemptuous and insulting gestures toward defendant, and that said shooting was not in self-defense, as defined in other instructions given, and was not done with malice but was the result of such passion, then you will find the defendant guilty of manslaughter in the fourth degree and assess his punishment at imprisonment in the penitentiary for two years, or by imprisonment in the county jail not less than six months, or by a fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months. ”

A large number of Missouri cases are cited in support of above contention. We have carefully examined each of said cases, and do not find that any of them go to the extent of holding that an instruction on manslaughter should have been given where the circumstances surrounding the transaction were like those in the ease before us.

The facts in this ease have been very fully stated, and need only be referred to in a general way.

It stands admitted that defendant, less than twenty-four hours before killing deceased, wrote her a letter, in which he said: “I am warning you if I ever catch you put your foot in my yard I will blow your brains out.” The wife of defendant testified that she had communicated to defendant, before the killing, the' various threats and conduct of deceased heretofore mentioned. The above letter clearly indicated malice aforethought, and must be so construed in considering the law relating to manslaughter. Taking the testimony of defendant, as to what occurred at the time of the shooting, and immediately prior thereto, in connection with the letter aforesaid, we are of the opinion that he was not entitled to an instruction on manslaughter. After warning deceased that he would blow her brains out, if found on his premises, he discovered her in a few hours thereafter, standing in the highway, near his gate, twenty-five or thirty feet from the house, but not on his premises. At the request of deceased, defendant’s wife came out near the gate with her child in her arms and remained there fifteen or twenty minutes listening to the talk and threats of deceased. It is not claimed, .that the- latter made any effort to assault the wife or child with the cane which she held in her hand before defendant appeared upon the scene. Appellant testified that deceased was making threats against his wife, his child and himself after he approached the gate where they were standing. lie then describes what occurred there, as follows:

“Well, I come around the corner of the house there; I seen Lea and Mrs. Marrs standing out there'west of the house there by the fence, and Lea was on the inside of the fence and Mrs. Marrs was standing on the outside and she was cussing. I heard her say ‘G — d d — n him, Lea,’ and she said to me, ‘D — n you, you thought you would keep me away from here writing that letter, didn’t you, ’ and I said, ‘ Go on away and let us alone, ’ and she had her cane in her hand and waved it over her head and said, ‘G — d d — n you, I am going to settle this;’ I said, ‘Come on Lea and go to the house,’ and she said, ‘Don’t you go, Lea, ’ and I had the hammer in my hand and I laid it down and I went to where Lea was and said, ‘ Come on in the house, Lea,’ and she said, ‘Don’t you go, Lea,’ and I laid my hand on Lea’s shoulder and she struck at me with the cane and hit me on the hand, and she said, ‘I will knock yonr darn brains out, ’ and, as we went to the house Lea said she was going to kill ns and she [deceased] said, ‘You are darn right I am going to, that’s what I" come np here for.’ ” Thereupon the defendant, his wife and child went into the house and left deceased still standing in the highway. The deceased had no gun or other weapon except the cane heretofore mentioned. She did not enter defendant’s premises and made no effort to enter defendant’s house. While matters were in this shape, the defendant voluntarily resumed hostilities, by leaving the house with a double-barreled shotgun, and shooting deceased twenty-five or thirty feet distant twice, without moving his gun, although she was still upon the highway.

Even if it be conceded that the acts and conduct of deceased before defendant and his family entered the house were sufficient provocation to arouse his passion at that time, yet, he then made no effort to assault deceased or do her bodily harm. On the contrary, he retired with his family to a place of security, and without being moved by sudden heat of passion voluntarily returned to the scene of conflict for the evident purpose of shooting his former antagonist, as indicated in the letter heretofore mentioned. The acts and conduct of deceased at the time and place of shooting, as well as prior thereto were insufficient to warrant the court in giving defendant’s instruction 11, or any other instruction upon the subject of manslaughter. [State v. Liolios, 285 Mo. 1, 225 S. W. l. c. 946; State v. Hostetter, 222 S. W. (Mo.) l. c. 755; State v. Stenzel, 220 S. W. (Mo.) l. c. 883-4; State v. Davis, 217 S. W. (Mo.) l. c. 92-3; State v. Jones, 217 S. W. (Mo.) 22-3; State v. Stewart, 278 Mo. l. c. 184-5, 212 S. W. 853; State v. Burns, 278 Mo. l. c. 449, 213 S. W. l. c. 116; State v. Borders, 199 S. W. (Mo.) l. c. 183; State v. Vest, 254 Mo. l. c. 464-8; State v. Bostwick, 245 Mo. 483; State v. Barrett, 240 Mo. l. c. 169; State v. Sharp, 233 Mo. l. c. 290.]

The trial court committed no error in refusing to instruct upon manslaughter.

III. In appellant’s second assignment of error it is said: “The'trial court erred in giving the State’s instruction numbered nine on the presumption of guilt.”

The instruction complained of supra, and the one given in State v. Little, 228 S. W. l. c. 797, cited by appellant, are so nearly alike that we have deemed it appropriate to set them out in juxtaposition, as follows:

LITTLE CASE.
“5. The court instructs the jury that he who willfully, that is, intentionally, uses upon another at some vital part, a deadly weapon, such as a shotgun loaded with gunpowder and leaden balls, must in the absence of qualifying facts be presumed to know that the effect is likely to be death, and knowing this must be presumed to intend death, which is the probable and ordinary consequence of such an act; and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly or from a bad heart. ’ ’
PRESENT CASE.
1 ‘ 9. The court instructs the jury that he who wil-fully, that is intentionally, uses upon another at some vital point, a deadly weapon, such as a shotgun loaded with powder and leaden bullets, must in the absence of - qualifying facts, be presumed to know that the effect is likely to produce death, and knowing this, must be presumed to intend death as the probable and ordinary consequence of such an act; and, if such deadly weapon is used without just cause or! provocation, as defined in other instructions, he must be presumed to do it wickedly and from a bad heart. ’ ’

The correctness of said Instruction 5 was vigorously challenged by counsel for Little in the oral argument before this court, in their original brief, and in their brief on motion for rehearing. The matter was fully considered by this court in State v. Little, 228 S. W. l. c. 797, and the correctness of said Instruction 5 sustained, in respect to facts similar to those before us here. Numerous authorities are cited in the Little case in support of the conclusion there reached. The main authorities relied on by appellant here were presented to the court in the Little case and, hence, we do not deem it necessary to discuss this subject further.

Said assignment is accordingly overruled.

IY. Appellant’s third assignment charges the court with error in permitting the bloody garments of deceased to be exhibited before-the jury, and in permitting them to remain there in plain view of the jury, etc.

We are referred to the page of transcript where appellant’s counsel interposed an objection of the above nature, but the record recites the following:

‘ ‘ By the Court: TÍie court is of the opinion that the clothes objected to are not within the sight of the jury and haven’t been as they passed in and out, and even the ones that had blood on the attorney objected to are covered by the bonnet and clothing that had no blood on it.” The above statement of the trial court recites that fhe garments of deceased were not exhibited in the presence of the jury during the progress of the trial and, furthermore, that the part which was blood-stained had been covered with other garments on which there was no blood. The court thereupon had said garments removed, and there was no further controversy over this matter. After carefully reading the transcript, we are satisfied that no injustice was done the defendant in respect to above matter.

The facts in the case of State v. Edelen, 288 Mo. 160 and following, were entirely unlike those in the case before us. In the Edelen case, the clothes of the prose-cutrix were dramatically exhibited as a part of the cross-examination in such manner as to brow-beat the defendant and prejudice the jury against him. In this case, it is undisputed that defendant wrote the letter threatening to kill deceased if she came upon his premises, and that he shot and killed the deceased under the circumstances heretofore stated. The jury found the defendant guilty and gaye him the lowest punishment which could be inflicted under the instructions of the court. There is nothing in the record tending* to show that any improper use was made of deceased’s clothing, or that the jury was in any manner prejudiced against appellant. On the contrary, considered from any viewpoint, we are of the opinion that the trial court committed no error of which the defendant can complain in respect to above assignment.

Y. The fourth assignment of error reads as follows:

“The trial court erred in refusing to allow the wife of defendant to testify as to what she told defendant in the house as to the threats and conduct of deceased immediately prior to their entering the house, and what defendant said when starting out with the gun, as evidence of his intentions, and his state of mind, all of which was a part of the res gestae.”

The court did not refuse to permit the wife to state what she said before they entered the house, nor what she said after entering same. On the contrary, she testified as follows:

“Q. What did you say after you got in the house? A. I says, ‘Frank, she said she come to kill you and the baby, and she means it.’ ”

The trial court not only admitted the above testimony, but likewise permitted both defendant and his wife to testify as to what deceased said before they entered the house, including the above statement. This part of said assignment is absolutely devoid of merit.

The further point made in respect to the above assignment of error relates to the action of the court in refusing to permit the wife to testify as to what defendant said after they got in the house. The State objected to the wife testifying as to what the defendant said in the house. Thereupon the following occurred: '

‘By Mb.. AlleN: I don’t think we are entitled to what he said, but what she said-to him.” (Italics ours.)

Aside from the admission of defendant’s counsel in open court that this proffered testimony was incompetent, the law is too well settled for discussion that the self-serving declarations of the defendant, outside the presence of deceased, are no part of the res gestae, and are incompetent for any purpose. Especially so, in a case of this character, where both husband and wife were permitted to testify fully as to all that occurred in the presence of deceased. Self-serving declarations like those sought to be elicited in this case in the absence of deceased, are incompetent in either a civil or criminal case. [O’Day v. Annex Realty Co., 191 S. W. (Mo.) l. c. 46 and cases cited; State v. Cruts, 288 Mo. 107, 231 S. W. l. c. 605-6; State v. Burns, 278 Mo. 441, 213 S. W. l. c. 116; State v. Reeves, 195 S. W. (Mo.) 1030; State v. Anderson, 252 Mo. l. c. 89; State v. Long, 201 Mo. l. c. 674; State v. Atchley, 186 Mo. l. c. 194; State v. Maguire, 113 Mo. 670; State v. Holcomb, 86 Mo. l. c. 378; State v. Van Zant, 71 Mo. l. c. 543-4.] The above assignment is overruled.

VI. The fifth assignment of error is couched in the following language:

“The trial court erred in refusing defendant’s offer of evidence to the effect that, on the Ony the baby was born, as well as before, she. (deceased) did not propose that the baby should live"

In support of this assignment, we are referred to the testimony of Mrs. Annis Hall, who testified that deceased had the reputation of being a quarrelsome woman. The witness was then asked if she had a conversation with deceased a few days after the bgby was born.- She answered that she had a conversation with her on the day it was born. She was then asked to state the conversation, and the State’s objection thereto was sustained. Thereupon, counsel had the record show that he offered to prove by said witness that she had a conversation with deceased on the day said baby was born; that she told witness she had tried at numerous times to get defendant’s wife to produce an abortion and destroy said child; that she also told the witness, that she did not propose that said child should be raised by Lea Allen. Counsel asserted that this testimony was offered to show the hostile feeling deceased had toward Lea and said child. It was not claimed that the subject-matter of this conversation, if it ever occurred, was communicated to defendant or in any manner operated on his mind at the time he killed deceased. The testimony of defendant’s wife, as to , the threats, acts and conduct of deceased about the date of the birth of said child, and at other times, was admitted in evidence, because she testified said matters were communicated by her to defendant and, hence, was proper in considering the provocation which defendant had in mind at the time of the killing. The acts and declarations of deceased communicated to’ defendant, as well as what she said in his presence, were given in evidence without objection before the. jury. The witness testified as to the general reputation of deceased ahd was properly.precluded from going into specific acts for the purpose of showing her quarrelsome or turbulent disposition. What we said in State v. Burns, 278 Mo. 441, 213 S. W. 117, is no authority for the admission of the above testimony rejected by the court. The court committed no error in respect to the above assignment. [State v. Wilson, 250 Mo. 323; State v. McNamara, 212 Mo. 150; State v. Punshon, 124 Mo. l. c. 457; State v. Curtis, 70 Mo. l. c. 597.]

VII. Appellant’s sixth assignment (a) reads as follows :

“The court erred in stating within the hearing of the jury that: ‘Defendant has been on the and don’t show in his testimony that.it was in the protection of hiá wife and child the shot was fired. ’ ’ ’

We are referred by counsel in their brief, to the testimony of Mrs. Cordia Allen on this subject. Witness was asked to state if she had ever heard deceased say anything about the baby. The State’s objection to this question was properly sustained, as shown in the preceding' paragraph of this opinion. Thereupon, the following occurred:

“By Mr. Auleh: I believe that’s competent, your honor, on the theory that a man has the same right to protect his wife and child that he has himself.
“By the Court: That might be true but the defendant has been on the stand and don’t show in his testimony that it was in the protection of his wife and child the shot was fired. .
, “By the Court: Those remarks of the court are simply indicating to you why the court thought the evidence not competent.”

The evidence sought to be elicited from the above witness was incompetent as stated in the previous paragraph. After the court had ruled adversely to defendant, his counsel still insisted on arguing the question with the court, and the statement complained of simply reflected the views of the court as to the incompdency of said testimony. The defendant was examined in his own behalf, but was not cross-examined by the State. He made no explanation of the letter he had written deceased, and did not testify at the trial he had killed her to protect his wife or child. On the contrary, when asked by his counsel as to what he did after leaving the house, he said:

“I took the gun out and held it to scare her away, I held the gun in my hand this way (indicating) and she came over to the gate and I thought she had a gun, she had something in her hand, and I shot right through the gate.” The wife and baby were then in the house and were in no immediate danger from deceased.

As heretofore stated, the testimony offered was properly excluded, and the reason assigned by the court for adhering to its former ruling affords no ground for disturbing the verdict in this case.

Under sub-proposition “b” in defendant’s assignment of errors complaint is made as to certain statements of tbe court in reference to the request of defendant’s counsel- to have the clothes of deceased removed from the presence of the jury.

After most of the testimony had been heard, Mr. Thompson, in behalf of defendant, renewed his objection to the alleged presence of deceased’s bloody clothing, etc., before the jury. Counsel for the State asserted that the things objected to were not within the sight or knowledge of the jury. Thereupon, the following occurred :

“By the Court: The court is of the opinion that the clothes objected to are not within the sight of the jury and haven’t been as they passed in and out, and even the ones that had blood on the attorney objected to are covered by the bonnet and clothing that had no blood on it, and that the court sees no reason at this time, in order to gratify the-wish of the attorney while the court thinks no harm done by them, to direct the sheriff to remove them from the court room.”

On the record before us we are bound to assume that the recital of the court as to deceased’s clothing is true. We are urged, however, to reverse and remand the case because the court s.aid the garments would be moved to gratify counsel making the above objection. In other words, the court, in legal effect held that the garments complained of were not in the presence of the jury, but to please or satisfy counsel the garments would be removed from the court room.

The authorities cited in appellant’s brief in support of above contention are not in point. In our opinion the above assignment is devoid of merit.

VIII. Defendant’s seventh assignment of error reads as follows:

“The óourt erred in not giving defendant’s instructions 1, 2, 3, 4 and 5, and instruction 11, being approved instructions, on defendant’s theory of his case, and erred m its attempt to cover defendant’s facts in instructions asked by the State.”

Instruction 11, mentioned in this assignment, relates to manslaughter, and was properly refused for the reasons heretofore assigned under proposition two of this 'opinion. ^

Without stopping to consider in detail, instructions numbered 1, 2, 3, 4 and 5, asked by defendant and refused by the court, some of which are too argumentative in form, we are of the opinion that upon a careful consideration of instructions 2, 10,11, 12, 16 and 17, given by the court, they clearly and correctly stated all the law that was necessary for the jury to consider, in passing upon the matters covered by defendant’s refused instructions 1, 2, 3, 4 and 5. Where necessary and proper instructions are given, as in this case, the trial court committed no error in refusing others relating to the same subject. [State v. Howard, 231 S. W. (Mo.) 255; State v. Dooms, 280 Mo. 84, 217 S. W. l. c. 47; State v. Cole, 213 S. W. (Mo.) l. c. 113; State v. Bowman, 278 Mo. 492, 213 S. W. l. c. 65; State v. Mastin, 277 Mo. 495, 211 S. W. l. c. 18; State v. Jones, 276 Mo. l. c. 301, 207 S. W. 793; State v. Rose, 271 Mo. l. c. 28, 195 S. W. 1013; State v. Guinn, 174 Mo. 680.]

We have examined with great care, not only the instructions above mentioned, but all of those given to the jury. We are of the opinion that they properly declare the law, and presented defendant’s defenses to the jury in a fair and liberal manner.

IX. Appellant’s eighth assignment of error reads as follows:

‘ ‘ The trial court erred in admitting- in evidence the testimony of Lea Allen, wife of defendant, taken at the inquest and erred in permitting the State to cross-examine her at the trial on her testimony obtained at the inquest; for the reason she was not advised that she may not testify, having then no counsel, but was placed on the stand by the coroner (or State) and compelled to testify.”

It may be conceded, that under Section 4036, Eevised Statutes 1919, the wife of defendant could not have been compelled to testify as a witness before the coroner. If, however, she testified of her own volition, she was liable to cross-examination, as to any matter referred to’ by her and was liable to contradiction and impeachment, as any other witness in the case. Chapter 48, Revised Statutes 1919, authorized the coroner to hold the inquest over the death of Leota Marrs. Section 5929, Revised Statutes 1919, required that the testimony taken at said inquest should b.e taken down in writing and subscribed by the witnesses. It cannot be presumed, in the absence of evidence on that subject, that the coroner compelled defendant’s wife to testify against her consent. The State in rebuttal offered in evidence the testimony of defendant’s wife taken before the coroner to contradict the testimony given by her at the trial of this case. This was objected to by defendant’s counsel, for the reason that no showing had been made to the effect that Mrs. Allen had been advised she could decline to testify. Thereupon counsel for the State said she had been so advised and voluntarily asked permission to go back on the stand, where she gave additional testimony. The evidence before the coroner was then read and, among other things, recites, at the commencement thereof, that Lea Allen was “first advised and warned that she need not answer any questions or make any statements which might incriminate her husband, Frank Allen. ’ ’ Thereupon, counsel for defendant asked to have the above statement stricken out, as it was no part of the testimony, etc. This request was overruled.

The record shows that Lea Allen voluntarily testified as a witness without objection, and at her own instance was recalled to enable her to give additional testimony in the case. We are, therefore, of the opinion that the court was within the law, in permitting Lea. Allen to be cross-examined as to her statements before the coroner; and committed no error in permitting the testimony of defendant’s wife before the coroner to be read in evidence, for the purposes of impeachment, regardless of the above recital, as it cannot be presumed, in the absence of evidence on the subject, that the coroner as a public officer violated the statute in compelling the wife to testify illegally. [Wells v. Wells, 213 S. W. l. c. 833 and cases cited.]

(a) Aside, however, from the foregoing, as defendant’s wife was the principal witness at the trial in Ms behalf, and testified as to every phase of the case under consideration, she stood upon the same plane as any other witness in the case, and was liable to impeachment in the same way. If she made material statements out of court, which were in conflict with what she said at the trial, relating to the merits of the controversy, the State was entitled to show the same, whether made before the coroner or elsewhere. [State v. Smith, 228 S. W. (Mo.) l. c. 1061; State v. Drew, 213 S. W. (Mo.) l. c. 107; State v. Ivy, 192 S. W. (Mo.) 733.]

‘ X. We have read the entire record and briefs in this case with a great deal of care, and have reached the con-elusion that the case was well tripd, without any error of which defendant can legallf' complain, and that he was convicted upon substantial evidence by a fair and impartial jury.

The judgment below is accordingly affirmed.

White and Reeves, CC.; concur.

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

All of the judges concur; David E. Blair, J., in separate opinion.

DAVID E. BLAIR, J.

I concur in the majority opinion. I think this is a proper case for an instruction on the presumption of malice arising from the intentional use of a deadly weapon upon another at some vital part, for the reason that defendant admitted the intentional use of such weapon, but claimed justification and there were no eyewitnesses, except the defendant and his wife, the latter not being a competent witness against him.

On more mature consideration I am inclined to think this sort of instruction was not proper in the case of State v. Little, 228 S. W. l. c. 797, cited and approved in the majority opinion, for the reason that the person there assaulted survived the attack and he and his wife testified at the trial to all that took place at the time of the shooting. When the facts were developed by eyewitnesses there was no room for the indulgence of any presumption of malice on the part of defendant by the use of a deadly weapon.


source: Caselaw Access Project

author: DAVID E. BLAIR, J.

license: Public Domain

text:
    CHARLES C. ORTHWEIN, Appellant, v. WILLIAM H. NOLKER, Administrator.
    Division Two,
    November 19, 1921.
    1. NEGOTIABLE NOTE: Parol Evidence That Indorser was Maker. In ftte absence of words written on the instrument indicating to the contrary, the legal effect of a blank indorsement upon a note cannot be changed or varied by evidence from other sources. Where a person signed a note on the back thereof, not as maker, drawer or acceptor, he must be deemed an indorser, and parol evidence to show he was in fact a maker is incompetent.
    2. ——=—: Presentment and Notice: Waiver. If the indorser of a note knew that the maker, a corporation, could not or would not pay it at maturity and, with such knowledge prior to the time presentment of the note to the company for payment and notice of dishonor to him were required, agreed to pay the note or otherwise take care of it, if the payee would wait until after the time for presentment for payment and notice for dishonor would necessarily, because of his request, be past, he should be 'held to have waived the requirement for presentment and notice.
    B. -: Agent: Competent Witness: One Party Dead. An agent of one of the. parties to the contract or cause of action in issue and on trial is a competent witness notwithstanding the death of the other party to such contract. The agent of the deceased payee of a negotiable note is a competent witness, in a suit against the administrator of a deceased indorser, to testify to facts which constitute a waiver by such indorser of a presentment of such note at its maturity to the maker for payment and of notice of dishonor.

      Appeal from. St. Louis City Circuit Court. — Hon. Vital W. Garesche, Judge.
    Reversed and remanded.

      Shepard Barclay for appellant.
    (1) The burden of proof to show facts which might render a witness incompetent rests upon those who assert incompetency; for all witnesses “are presumed to be competent, until the contrary appears.” 3 Phillipps on Evid. (5 Am. Ed.) pp. 13, 35; Freleigh v. State, 8 Mo. 611; King’s Lake Dist. v. Jamison, 176 Mo. 570; Whit-, man v. Foley, 125 N. Y. 659. Disqualification of a witness must clearly appear in order to exclude him. Nearpass v. Oilman, 104 N. Y. 506. (2) There.is no testimony to disqualify Max R. Orthwein; no testimony that he was agent for Mrs. Caroline Orthwein. R. S. 1919, sec. 5410. (3) Max R. Orthwein was agent for Louis T. Nolker to obtain a short extension of time beyond maturity of the note, “until after the holidays” as Nolker requested, shortly before maturity of this note. Orthwein obtained the holder’s assent thereto; reported it to Nolker, and the time for payment- was hence and thereby extended beyond maturity, which facts constitute a Avaiver of any demand, notice or protest, necessary to hold Louis T. Nolker if he was strictly indorser. R. S. 1919, secs. 895, 897; Banking Co. v. Blell, 57 Mo. App. 410; Bank v. Bartle, 114 Mo. 276; Yaeger v. Farwell, 13 Wall. 6; Grove v.Wining, 7 Mete. 212; Cady v. Bradshaw, 116 N. Y. 191; Hale v. Danforth, 46 Wis. 554; Belch v. Roberts, 191 Mo. App. 243. (4) Section 5410, Revised Statutes 1919, is an “enabling and not a disabling”- statute (89 Mo. 128), intended to confer competency o'n witnesses previously disqualified “because of interest in the event of the action.” It does not disqualify any witness theretofore competent under principles of the common law. Wagner v. Binder, 187 S. W. 1128; Stanton v. Ryan, 41 Mo. 510; Burd v. Ross, J5 Mo. 254; Massey v. Butts, 221 S. W. 152; Angelí y. Hester, 64 Mo. 142; Meier v. Thieman, 90 Mo. 433; Allen v. Jessnp, 192 S. W. 723; Clark v. Thias, 173 Mo. 628; Lytle v. Bond, 40 Yt. 618; Bank v. G-erli, 226 Pa. 256; Re Edmundson, 259 Pa. 429; MacDonald v. Tittmann, 96 Mo. App. 536; Bates v. Forcht, 89 Mo. 121. (5) The testimony offered by plaintiff to show the .“facts and surrounding circumstances at the making of that note” was competent; and the circuit court erred in excluding it. It was part of the res gestao, tending to show that Nolker was the original debtor, and making more probable the claim of plaintiff of waiver, etc., as testified by Max R. Orthwein.' Wood v. Matthews, 75 Mo. 477; Bank v. Willerscheid, 222 S. W. 912; Castrique v. Buttigieg, 10 Moore (P. C.) 108; McDonald v. Whitfield, 8 App. Cas. 733; Brown, on Parole Evid. sec. 83; Phillips v. Preston, 5 How. 278. (6) Even if Max Orthwein had been an agent (not otherwise interested) he would be competent to testify at common law, when the adversary .party is disqualified, or dead. 1 Greenl. Evid. (12 Ed.) sec. 416; Bates v. Forcht, 89 Mo. 327; Bank v. Rood, 132 Mo. 260. It was so held in Missouri prior to the enactment of Section 5410. Stothard v. Anil, 7 Mo. 318; St. John v. McConnell, 19 Mo. 38. Later decisions recognize the same rule as existing. Stanton v. Ryan, 41 Mo. 510; Poe v. Domic, 54 Mo. 124; Williams v. IDdwards, 94 Mo. 447; Bates v. Forcht, 89 Mo. 127; Clark v. Thias, 173 Mo. 628; Bank v. Slattery, 166 Mo. 620; Baer v. Pfaff, 44 Mo. App. 35; Leahy v. Simpson, 60 Mo. App. 83; MacDonald v. Tittman, 96 Mo. App. 536; Dawson v. Wombles, 104 Mo. App. 272; Wagner v. Binder, 187 S. W. 1128; Allen, v. Jessup, 392 S. W. 720. If he was agent for both parties, he would also be competent. Slupsky v. Starr,' 223 S. W. 816; Hunter v. Leathley, 10 B. & C. 864; 1 Greenl. Evid. (16 Ed.) p. 901, sec. 416. (7) Max R. Orthwein (as president of the Peroxident Co., maker of the note) was compellable to testify if called by the plaintiff, as a witness of adversary interest to the payee: R. S. 1919, sec. 5412.

      Marion C. Early for respondent.
    (1) The fact that Louis T. Nolker’s name first appears on the back of the note, without mention on its face, makes him an indorser under Revised Statutes 1919, sec. 849; and such effect cannot be changed or varied by parol evidence. Eaves v. Keaton, 196 Mo. App. 424; First Bank v. Korn, 179 S. W. 721. (2) Under Sec. 5410, R. S. 1919, where one party to a transaction in suit is dead, the surviving agent of the other party, who conducted such transactions, cannot testify as to them. Stanton v. Ryan, 41 Mo.' 510; Fulkerson v. Thornton, 68 Mo. 468; Butts v. Phelps, 79 Mo. 302; Williams v. Edwards, 94 Mo. 447; Robertson v. Reed, 38 Mo. App. 32; Orr v. Rode, 101 Mo. 387; Leach v. McFadden, 110 Mo. 584; Carroll v. United Railways, 157 Mo. App. 247; Edwards v. Scharff, 279 Mo. 78; Scott v. Cow-en, 274 Mo. 398; Lyngar v. Schaefer, 125 Mo. App. 400. (3) The foregoing proposition is a corollary of the rule that the proviso of Section 5410 must be interpreted to secure equality, so that when death has sealed the lips of one party, the other shall not be permitted to testify to transactions .with the deceased. Kersey v. O’Day, 173 Mo. 56; Weiermueller v. Scullin, 203 Mo. 466; Miller v. Wilson, 126 Mo. 48; First Bank v. Payne, 111 Mo. 291; Green v. Ditch, 143 Mo. 1; Taylor v. George, 176 Mo. App. 215; Griffin v. Nicholas, 224 Mo. 327; Meier 'v. Thieman, 90 Mo. 433; Chapman v. Dougherty, 87 Mo. 617; McKee v. Downing, 224 Mo. 115; Southern Bank v. Slattery, 166 Mo. 620. (4) Asa matter of fact, the testimony of William R. Orthwein was immaterial. (5) As a matter of fact, under the evidence, Max Orthwein never was the agent of Louis T. Nolker, now deceased. (6) The court below ruled out none of the evidence tendered to prove that Max Ortliwein was the agent of Louis T. Nolker, now deceased. Max Orthwein, as president of the Peroxident Company, the maker of the note, claiming that as between the company and Louis T. Nolker, the indorser, the latter was the debtor, and that the company was only accommodation maker as between the two, has an adverse interest to Louis T. Nolker, deceased; and therefore is incompetent to testify to transactions with Louis T. Nolker. This is true: (a) Under appellant’s construction of the proviso to ‘Sec. 5410, R. S. 1919; Allen v. Jessnp, 192 "S. W. 720. (b) And also under the construction of the proviso set forth by respondent. Scott v. Cowen, 274 Mo. 398; Lyngar v. Schaefer, 125 Mo. App. 400; Scott v. Burfiend, 116 Mo. App. 71; Thompson v. Brown, 121 Mo. App. 524; McClure v. Clement, 161 Mo. App. 23; Cleveland v. Carlson, 99 Mo. App. 468.
   DAVID E. BLAIR, J.

This case originated in the Probate Court of the City of St. Louis as a demand against the estate of Louis T. Nolker, deceased. The claim was allowed in that court, and on appeal to the circuit court judgment was rendered in favor of the defendant, disallowing said claim, and plaintiff has appealed. The claim is based on the following note:

“St. Louis, December 19th, 1907.
“$5000.00
“One year after date I promise to pay to the order of Caroline Orthwein five thousand and no/100 dollars. For value received negotiable and payable without defalcation or discount with interest at the rate of six per cent per annum from date. Payable at the office of William J. Orthwein, Gray Building.
“PeboxideNt Meg. Co.
“Per Max R. QbtiíweiN, Prest.
“(Endorsed) Louis T. Nolker,
“Max R. Orthwein and Chas. C. Orthwein, Executors of the Estate of Caroline Orthwein, Deceased. ’ ’

The principal of said note with accrued interest brings the amount of the demand within our jurisdiction. No part of the principal or any interest thereon has been paid. Appellant acquired title to said note by endorsement from the executors of the estate of Caroline Orth-wein, deceased.

Plaintiff offered and the trial court excluded oral evidence tending to show that Nolker was in fact maker of the note; that it was executed to renew a note signed by him as maker. This testimony was excluded on the ground that the witness, Max R. Orthwein, was incompetent to testify, because he was acting as the agent of Caroline Orthwein, fhe payee, and because Louis T. Nolker, the maker, was dead. Because of the view we take of the competency of this sort of testimony generally, discussion here of the competency as a witness of the agent of one party to a contract when the other is dead is unnecessary. That question will be considered later in the opinion in connection with the evidence offered tending to show waiver of notice of dishonor.-

The testimony of this witness as to the circumstances leading up to Nolker’s signature on the note was properly excluded, not for the reason assigned, but because it is not permissible to show by parol evidence that Nolker signed the note in any capacity other than as endorser. Plaintiff tried the case on the theory and endeavored to show that Nolker was in fact maker of the note. Section 10033, Revised Statutes 1909, enacted in 1905 (now Sec. 849, R. S. 1919), is as follows:

“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”

In the case of Overland Auto Company v. Winters & Strang, 277 Mo. 425, this Division, construing the statute just quoted and speaking through White, C., held that the words “ unless he clearly indicates by appropriate words his intention to be bound in some other capacity” undoubtedly mean “words written upon the instrument itself” and that “the legal effect of a blank endorsement cannot be changed or varied by evidence from another source.” Certainly it could not be varied by parol evidence. Nolker signed the note in blank on the back thereof and not as maker, drawer or acceptor and must be deemed an endorser and parol evidence to show that he was in fact a maker was incompetent. See cases cited in Auto Company v. Winters, supra.

The trial court permitted Max R. Orthwein to testify as follows:

“A. I met Louis Nolker at Faust’s by appointment, told him that Mrs. Orthwein insisted on the payment of the note when it became due and that the Peroxident Company was not in shape to take care of it, and asked about what he would do about it. He then said that it came due just about the holidays; it was very inconvenient for him to take care of it at that time, but if I would ask Mrs. Orthwein to let it run over until after the holidays, he would arrange for its payment and see that it was taken care of . ' .
“Mr. Orthwein: Q. After Mr. Nolker said that to you, what did you do? A. I submitted it to Mrs. Orth-wein, and also wrote to my brother, C. 0. Orthwein, at Kansas City. Mrs. Orthwein said, 'Very well; if he will see that it is taken care of shortly after the holidays, we will let it run on until that time. .
“Mr. Orti-iwbin: Q. Did you tell Mr. Nolker the result of your conversation with .your mother? A. I did; and he reiterated the fact that shortly after the holidays he would take care of the note. ... I told Mr. Nolker that Mrs. Orthwein said ‘Very well, she would let the matter run on until a short while after the holidays.’ He then said that was very good, and that he would be sure to take care of the note shortly after the holidays.”

In his findings of fact and conclusions of law the trial judge held that Max R. Orthwein was incompetent as a witness because he was acting as Mrs. Orthwein’s agent and the other party, Louis T. Nolker, was dead, and by such: ruling excluded the testimony covering the facts relied upon as constituting waiver of,notice of dishonor. We have no hesitancy in holding that if this testimony is competent and was believed by the trier of the facts, it is sufficient to show waiver of presentment and notice of dishonor by Louis T. Nolker as endorser. [Secs. 10079 and 10081, Revised Statutes 1909 (now Secs. 895 and 897, R. S. 1919); Banking Co. v. Blell, 57 Mo. App. 410; Bank v. Bartle, 114 Mo. 276; Belch v. Roberts, 191 Mo. App. 243.] If Nolker knew the Peroxident Manufacturing Company could not or would not pay the note at maturity and, with such knowledge prior to the time presentment of the note to that company for payment and notice of dishonor to him were required, he agreed to pay the note or otherwise take care of it, if Mrs. Orthwein would wait until after the time for presentment for payment and notice of dishonor would necessarily be past, he certainly must be held to have waived the requirement that such note he presented for payment and if payment be refused that he be notified of such fact.

This brings us then to a consideration of the competency of Max E. Orthwein (and incidentally of Wm. E. Orthwein) as a witness. The trial court found that he was acting, during the transactions concerning which he testified, as the agent of his mother, the payee in said note. As to the correctness of this finding of fact we have great doubt. There was nothing in the mere relationship of mother and son that justifies such conclusion, nor in the mere fact that both were stockholders in the Peroxident Manufacturing Company. As the president of said company it would be quite in keeping with his duties for Max E. Orthwein to have acted entirely as the agent of such company in finding some one to loan the money and in securing an endorser, and when the note was about to become due in exercising diligence to see that it was paid or otherwise cared for. But the view we take of his competency as a witness makes it a matter of little importance whether he was his mother’s agent or not.

Since the case of Wagner v. Binder, 187 S. W. 1128, was handed down by Division One there is little room for question in this State that an agent of one of the parties to the contract or cause of action in issue and on trial is a competent witness notwithstanding the death of the other party to such contract. In that case Woodson, J., very ably and fully discussed the Missouri cases and cases from other states on the question and directly overruled Banking House v. Rood, 132 Mo. 256, one of the cases relied on by respondent here.

This Division has since approved and followed Wagner v. Binder, supra, in the case of Allen v. Jessup, 192 S. W. 720, l. c. 722. Practically all of the cases prior to the Wagner case, cited by respondent as authority for his contention that Max R. Orthwien was incompetent to testify, are fully discussed and distinguished by Woodson, J., in the Wagner case.

Respondent contends that Scott v. Cowen, 274 Mo. 398, handed down since the Wagner case, sustains his position. In that case the agent was held incompetent, not on the ground of his agency, but because he was himself a party to the contract and also'a party to the suit. The fact of the agency of Bennett for one of the other parties to the contract was held to make him a competent witness when he was himself one of the principals. We are unable to see wherein this case is in anywise inconsistent with the Wagner case., Judge Woodson, who wrote the opinion in the Wagner case, concurred in the Scott case and apparently felt that the rulings were harmonious.

Respondent also contends that he is supported by the late case of Edmonds v. Scharff, 279 Mo. 78. The supporting value of this case is destroyed, we think, by the language of White, C., who wrote the opinion of the court:

“However the question of whether an agent conducting a transaction may afterwards testify, when the other party to the transaction is dead, hardly enters in this case. Mrs. Summers was not the agent of her daughter; according to her own testimony, as she gives it, she was herself the original party to the contract. Speaking of Gr. L. Edwards, she testified: ‘I bought some lots in Bernie from him and paid him about three hundred dollars for them'. He owed me some notes which I had been trying to collect for a long time and he gave me the lots for the notes. I had the deed made to my daughter, M. A. Edwards. . . . The notes I turned oyer to G. L. Edwards for these lots and they were canceled at the time, and I gave him a receipt for the account he owed me.’
“The effect of the transaction as she describes it is precisely the same as if she had purchased the lots and had the conveyance made to herself and subsequently had conveyed to her daughter. She is a party to the original contract or cause of action. The wording of the statute completely covers her case, Section 6354, Revised Statutes 1909. The provision is this: ‘Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to he insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of another party to the action claiming under him.’ ” (Italics used by White, C.)

It therefore appears that the trial court erred in excluding the testimony óf Max R. Orthwein touching the, transactions with Noilier and Mrs. Orthwein tending to show waiver of presentment and notice of dishonor, and for that reason the judgment must be reversed and the cause remanded for new trial.

All concur.


author: RAILEY, C.

text:
    LEILA ADA NEVINS v. PALMER GILLILAND et al., Appellants.
    Division Two,
    November 19, 1921.
    1. PARTITION: Child of Intestate: Finding of Trial Court. A partition suit is an action at law, and when tried to the court without a jury and without instructions, a finding that plaintiff was a child of intestate, if supported by substantial evidence, will not be disturbed on appeal, unless error in the admission or exclusion of evidence was committed. Not only so, but where all the substantial evidence in tlie case is to tlie effect that plaintiff was a child of intestate, and was so recognized by him, and the evidence to that effect is positive, the judgment would have to be reversed on appeal if the finding had been to the contrary.
    2. APPELLATE PRACTICE: Searching Record. It is not the.province of an appellate court to search the record for support of a general assignment that the trial court erred in admitting in evidence statements of deceased parents that plaintiff in the partition suit was their child, but it is the duty of appellant’s counsel to state in their assignments of errors and under their points and authorities the specific matters complained of and to designate where in the record the rulings are to be found.
    3. ADULTERINE BASTARD: Recognized by Father. The evidence shows that plaintiff was an adulterine bastard; that she was the child of intestate, conceived and born while her mother was the wife of another man; that the mother was afterwards divorced from her then husband, and she and intestate married, and both recognized plaintiff as his child to the time of their respective deaths, and she was so recognized by the community in which they resided. Held, that, under the statute (Sec. 312, R. S. 1919), plaintiff was a “legitimated” child of intestate, and was entitled to share equally with his other children in his estate.
    Appeal from Greene Circuit Court. — Rom. Guy D. Kirby, Judge.
    Affirmed.

      Moore, Barrett & Moore for appellants.
    (1) The court erred in declaring .the plaintiff herein an heir of John Gilliland, deceased. (2) The court erred in finding the issue for plaintiff, as such finding illegitimatized a child born in lawful wedlock. (3) The court erred in admitting evidence as to statements of the purported father and the mother of the plaintiff, as to the plaintiff being an illegitimate child of John Gilli-land and Mary Reed. (4) Proof that a father always treated plaintiff and her sister as his daughters, that he called the plaintiff’s children his grandchildren, does not establish paternity. Radelle v. Teo, 6 La. Ann. 129. A child born in lawful wedlock and recognized by the father is held conclusive proof of legitimacy. Bower v. Graham, 225 S. W. 978. Birth in lawful wedlock is prima-facie evidence of legitimacy, and must he overcome by the strongest testimony. If marriage he proven nothing can impugn' the legitimacy of the issue, short of proof of facts showing it to be impossible that the husband could be the father. Patterson v. Gains, 6 U. S. 55. Non-access not probable by husband or wife must be shown. 21 Ency. Evidence, 240.

      Jas. V. Pitts and Patterson & Page for respondent.
    (1) The statute’ is broad enough to include an adulterine bastard — that is, a child born of a married woman by a man not her husband. Sec. 312, R. S. 1919; Bower v. Graham, 225 S. W. 978; Drake v. Hospital, 260 Mo. 1; Ives v. McNicoll, 59 Ohio St. 402; Breidenstein v. Bertram, 198 Mo. 328. (2) This is a suit at law. No issues of an equitable nature were made by the pleadings. No declarations of law were asked or given. The finding of the trial court upon the issues of fact has all the validity of the verdict of the jury, and if supported by the evidence is not subject to review on appeal. Watson v. Priest, 9 Mo. App. 263; Smith v. Royse, 165 Mo. 654; Heynbrock v. Hormann, 256 Mo'. 21; Woods v. Johnson, 264 Mo. 289.; Holloway v. Holloway, 97 Mo. 628; Coffman v. Gates, 142 Mo. App. 648. (3) The only issue tried by the court was that of the paternity of plaintiff. On this issue of fact the evidence was ample to sustain the finding of the court on every point: (a) As to the marriage of Gilliland to plaintiff’s mother; (b) as to the recognition of plaintiff by Gilliland as his daughter; and (c) as to the fact that Gilliland was actually the father of plaintiff. Drake v. Hospital, 266 Mo. 1; Bower v. Graham, 225 S. W. 978; Breidenstein v. Bertram, 198 Mo. 328; Ives v. McNicoll, 59 Ohio St. 402; Advar v. Ackerman, 115 Fed. 124. (4) Where a case is tried Dy the court sitting as a jury, and no declarations of law are asked or given,' and both competent and incompetent testimony has been omitted, if there is in the record substantial competent evidence to support the finding an appellant court will indulge the presumption that the trial court based its finding upon the competent evidence and disregard the incompetent. Lewis v. Frankie, 158 Mo. App. 262; Bank v. Wodz, 197 Mo. App. 686; Laumier v. Gehner, 110 Mo. 122; McCullough v. Ins. Co., 113 Mo. 606; Cavell v. Tel. Co., 164 Mo. App. 630; State ex rel. West v. Diemer, 255 Mo. 336; J ackson v. Jackson, 80 Md. 176; Smith v. Smith, 140 Wis. 599.
   RAILEY, C.

We gather, from what was said at the oral argument of this cause, in connection with the abstracts and briefs on file here, that the case was originally commenced in the Circuit Court of Ozark County, and transferred by change of venue to Greene County, Missouri. The case was tried in the last named court, on an am'ended petition filed March 13, 1920.

Said petition, among other things, alleges that on February 2nd, 1919, John H. Gilliland, father of pliantiff, died intestate, in Ozark County, Missouri, the absolute owner of the northeast quarter of Section 34, and the northwest quarter of Section 35, also all of thát part of the southwest quarter of the southwest quarter of Section 26 lying on the east side of the main channel of Turkey Creek, containing 35 acres; all in Township 24, of Range 15, of Ozark County aforesaid, and containing in all 235 acres, more or less.

It is averred that John H. Gilliland left surviving him the defendant, Phronia Gilliland, his widow, who duly elected to take a child’s part; that plaintiff, Lelia Ada Nevins, and the defendants, Palmer Gilliland, Ranie Gilliland, Parley Smith and Olga Gilliland, are the only children and only heirs at law of the said John IT. Gilli-land, deceased; that the estate of said John H. Gilliland is in process of administration in the Probate Court of Ozark County; that there are ample assets in the hands of the administator belonging to said estate to pay all claims and demands against the same; that said estate is solvent, looking only to the personal property; that plaintiff and defendants are owners as tenants in common .of the land aforesaid, each owning an undivided one-sixth interest thereof; that all of the defendants have appeared and answered to the merits of this canse; that on account of the number of owners, the location and value of said lands, the same being rough, untillable and of little value, the same cannot be divided in kind between the parties aforesaid, without injury to their respective interests.

The petition concludes with a prayer that partition be made óf said land among plaintiff and defendants; that the court decree the same is not susceptible of being divided in kind; that said land be ordered sold by the Sheriff of Ozark County, for partition; that after paying all costs and allowances, the proceeds remaining from the sale of said land be divided and partitioned among the owners thereof, as their respective interests may be found by the court. General relief is also prayed for in the petition.

All of the defendants answered with a general denial.

The trial was commenced on January 30th, 1920, before Judge Kirby, without a jury. The following occurred at the commencement of the trial :

“By the Court: Before the introduction of any evidence in this cause it is agreed by and between the plaintiff and defendants that there is no controversy between the parties as to any of the material facts of the case, except defendants deny that the plaintiff has any interest whatever in the land, partition of which is sought. This admission is made subject to the right of the plaintiff to amend her petition so as to set up any facts affecting the shares of any of the parties which may have occurred since the institution of the suit.”

The undisputed evidence discloses that plaintiff was born on February 27th, 1876, at the home of John H. Gilliland in Ozark County, Missouri; that Andrew Jackson Eeed was married to Mary E. Hooper, on February 9, 1873; that in September or October, 1874, said Eeed and wife moved to the home of John H. Gilliland, who was then a bachelor, occupying a house with one room, on said Gilliland’s land; that Reed and wife, with said Gilliland, occupied this one-room house, during the winter of 1874-5. The defendants read in evidence the deposition of Jack Reed, in which he testified, that plaintiff was horn after he and his wife moved to Gilliland’s home; that from the last of April, 1875, to the last week in June of said year, he was in Nevada, Missouri, 150 miles from John H. Gilliland’s home; that he did not live with his wife during said period. Reed further testified, without objection, that after plaintiff was born, while they were at the Gilliland home, she cried one morning and he (Reed) “sorta spanked it;” that John H. Gilliland told him not to do it; that he said to Gilliland, “What is it your business whether I whip it or not?” and Gilliland told him that plaintiff was not his child; that plaintiff’s mother was present and heard this talk; that during the same day he had another talk with Gilliland and his wife; that Gilliland told him the plaintiff was his (Gilliland’s) child; that he asked his wife if that was true, and she' said it was; that he afterwards left her and obtained a divorce from her in April, 1879 ; that he never claimed plaintiff as his child; that John H. Gilliland claimed áhe was his child.

The following appears in defendant’s statement of the case:

“Shortly after the wife took up her abode with Gilliland, she gave birth to another child, which was named Leora and which is admitted to be the child of Reed. Later another child was born of her, which was named Palmer, and who is admitted to be a son of John H. Gilliland. After the birth of these children, and on November 9, 1886, John H. Gilliland and Mary E. Reed were married, and they continued to live together until the year 1890, when the mother died. .
“During all the time Gilliland and his said wife, and the two girls, Leora and Lelia, and the baby, Palmer, when he was born later, lived together as one family. Gilliland supported, educated and cared for them all alike, and referred to them all as bis children. When the two girls grew up, he still looked after them and called them his children.
‘ ‘ Gilliland died in about 1918,- and after his demise this suit was filed, the plaintiff claiming an interest, and such issue being submitted to the court, the issues were found for plaintiff, hence this appeal.”

The following facts are undisputed; (1) That John H. Gilliland repeatedly stated, while plaintiff was living with him, to various persons, that she was his child, and he always treated her as such; (2)' that Jack Reed’s wife stated to many persons that plaintiff was her child, and that John H. Gilliland was the father of plaintiff.

There was substantial evidence, offered at the trial, tending to show that plaintiff was a nine .month’s child, and was conceived while Jack Reed was at Nevada during April, May and June, 1875; that plaintiff lived with her mother and Gilliland, as her parents, until 1890, when the mother died; that on November 9, 1886, said John H. Gilliland and plaintiff’s mother, Mary E. Reed, were married, and continued to live together as husband and wife to the date of her death.

The record contains other substantial testimony tending to show that plaintiff was the child of Gilliland and Mrs. Reed, and that she was so recognized by the community in which they lived. In fact, there was no substantial testimony in the case tending to show that plaintiff was not the child of John H. Gilliland-

On February 7, 1921, the court found the issues in favor of plaintiff and rendered a decree as prayed for in the petition. Defendants filed motions for a new trial and in arrest of judgment. Both motions were overruled and the cause appealed by them to this court.

I. This is an action at law, tried before the court without a jury, and without instructions. There is not only substantial evidence in the record tending to show that plaintiff was the child of John H. Gilliland, but there is no substantial evidence to contrary. Unless, therefore, the trial court committed reversible error in its rulings, or in regard to the admission or rejection of testimony, during the progress of the trial, its judgment is conclusive against defendants on this appeal. [Bobb v. Frank L. Talbot Theater Co., 221 S. W. (Mo.) l. c. 374; Cowan v. Young, 220 S. W. (Mo.). l. c. 872; Case v. Sipes, 217 S. W. (Mo.). l. c. 307; Hayes v. McLaughlin, 217 S. W. (Mo.) l. c. 264; Franke v. Franks, 213 S. W. (Mo.) l. c. 42; Bingham v. Edmonds, 210 S. W. (Mo.) 885; Roloson v. Riggs, 274 Mo. l. c. 528, 203 S. W. 975; In re Lankford Estate, 272 Mo. l, 197 S. W. 147.]

(a) The evidence is conclusive, as above indicated, that plaintiff was tlie child of John H. Gilliland, and there is no substantial evidence in the record to the contrary. This issue was agreed upon at the commencement of the trial below, as being the only one in the case. Under the ruling of this court, in In re Lankford Estate, 272 Mo. 1, it would have been our plain duty to have reversed and remanded the cause with directions to find for plaintiff, had the court below, on the facts before us, found the issues in favor of defendants, as the judgment would have been without evidence to support it.

II. At the -oral argument of this case, counsel for appellants suggested that some exceptions were saved to the rulings of the court during the progress of the trial. After carefully reading both abstracts of record and the respective briefs of counsel, we are satisfied that the trial court committed no error against appellants of which they could legally complain in this court.

III. The only assignment of error made by appellants in their brief, reads as follows: '

(3) “The court erred in admitting evidence as to statements of the purported father and the mother of the plaintiff, as to the plaintiff being an illegitimate child of John Gilliland and Mary Seed.”

We are .not referred to any part of the record where such rulings can be found, nor are any of the matters above mentioned set out in the brief. It is not the province of this court to search the record for matters of this character, but the duty devolves upon appellants to state in their assignment of errors, or under their “Points and Authorities,” the specific matters complained of, and to designate where such rulings can be found in the record. [Christine v. Luyties, 217 S. W. (Mo.) l. c. 60.] Aside from the foregoing, after reading the entire record, we find the above complaints aré devoid of merit.

TV. It appears from the evidence that while Jack Reed was in Nevada, Missouri, during the months of May and June, 1875, his wife became pregnant, with a child by John H. Gilliland; that the plaintiff herein, was the child above mentioned; that Jack Reed and his wife were divorced in 1879; that said John H. Gilliland married Mrs. Reed in 1886, and the plaintiff: lived with them as Gilliland’s child until the death of her mother in 1890.

Section 312, Revised Statutes 1919, provides that: “If a man, having* by a woman a child or children, shall afterward intermarry with her, and shall recognize such child or ch.ildr.en to be his, they shall thereby be legitimated. ’ ’

We have heretofore construed the above statute to include an adulterine bastard. This applies to a child born of a married woman by a man not her husband. [Bower v. Graham, 225 S. W. (Mo.) 978; Drake v. Hospital Assn., 266 Mo. 1; Breidenstein v. Bertram, 198 Mo. 328.]

Without pursuing this inquiry further, we are satisfied with the conclusions reached by the trial court, and accordingly affirm its judgment.

White and Reeves, CC., concur.

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

All of the judges concur.