author: WHITE, C.

text:
    CATHERINE PETERS v. EQUITABLE SURETY COMPANY, Appellant.
    Division Two,
    February 16, 1918.
    1. APPEAL: Affirmance by Agreement: Release of Surety. Absent an agreement founded on good consideration and of such character as to be binding on both parties, made between appellant and respondent, to the effect that the judgment from which the appeal has been taken is to be affirmed, even though it contains a modification of the original liability, the surety on the appeal bond is not released upon the affirmance of the judgment.
    2. -: -: -: Dismissal of Appeal. An agreement made between counsel for appellant and respondent that an appeal would be 'dismissed when the agreed sum was paid by the surety on the appeal bond, and a dismissal by appellant’s counsel, who assumed that the surety would pay, and dismissed the appeal before payment was made and without the knowledge of respondent’s counsel, in no wise was a complete agreement for the affirmance of the judgment, and did not release the surety from paying the judgment, after the order of dismissal was set aside, the appeal reinstated, all the parties restored to status quo and the judgment affirmed.
    3. -: Affirmance: Without Notice to Surety. When a surety signs an appeal bond he submits himself to the management of the case by appellant in the proper appellate court, and at no stage of the proceeding is there any obligation on respondent to serve him with notice of any contemplated action; and he cannot complain that the judgment was affirmed without his knowledge or consent, even though the appellant neglected or refused to prosecute the appeal. If the appeal was dismissed, the order of dismissal set aside, and the cause reinstated, without notice to liim, and thereafter, because of the appellant’s failure to prosecute his appeal with diligence or to file brief and make argument, the judgment was affirmed, the surety cannot complain, for he submitted himself to the management of the case by His principal, and was not entitled to additional notice.
    4. -: -: -: General Liability of Surety. A surety on an appeal bond submits himself to the acts of his principal, and to the judgment itself as a legal consequence of his suretyship. He is bound by the result in the usual course of procedure, whether that result be reached by an adverse ruling or His principal’s default. By signing the appeal bond he voluntarily places himself in privity with his principal, and in the absence of fraud is con-eluded by tbe judgment that follows, and is not injured by a lack of opportunity or notice to appear and defend against tbe affirmance of tbe judgment.
    Appeal from St. Louis City Circuit Court. — Hon. George II. Shields, Judge.
    Affirmed.

      Boyle & Priest, Thomas M. Pierce and Chauncey H. Clarke for appellant.
    (1) The court erred in refusing to give defendant’s declaration of law in the nature of a demurrer to the evidence, both at the close of plaintiff’s ease and at the close of the whole case, for the reason that all the evidence showed that the railroad company failed to prosecute its appeal with due diligence, due to an agreement of compromise between the plaintiff and the railroad company, which agreement was a material variance from the original contract, thereby releasing defendant. Schuster v. Weiss, 114 Mo. 175; Bank v. United States, 164 U. S. 233, 238; Justice v. Surety Co., 2Ó9 Eed. 105; Barker v. Surety Co., 184 S. W. 378. (2) The court erred in refusing to give defendant’s declaration of law No. 8, declaring that if the appeal was dismissed pursuant to an agreement between plaintiff and the railroad company, then plaintiff was not entitled to recovery from defendant, for the reason set out above. Cases supra.

      R. M. Nichols for respondent.
    (1) If it could be said that the offer to abate $250 of the accrued interest would vary the surety’s contract in the supersedeas bond to pay the judgment of $5,000 (which we challenge), this understanding was with the surety. The testimony shows that the surety acquiesced in the proposition to have respondent throw off part of the interest on her judgment, objecting only as to the method of carrying it out, and beyond all controversy the surety company, on November 5, 1913, knew by respondent’s letter that respondent would abate $250 of the accrued interest and that the appeal had been dismissed, and that it was called upon to pay the judgment of $5,000 and half of the accrued interest. It, therefore, waived the defense which it.is now attempting to make, not only by asking for an extension of time until the 10th of November in which to pay the judgment, but by its knowledge and acquiescence in the proposed settlement. Price v. Edwards, 11 Mo. 524; Lumber Co. v. Stoddard, 131 Mo. App. 15; Boppart v. Surety Co., 140 Mo. App. 675; Troll v. Realty Co., 186 Mo. App. 196; State v. McGonigal, 101 Mo. 353; Rule v. Anderson, 160 Mo. App. 347; Lumber Co. v. Surety Co., 124 Iowa, 617; Williams v. Surety Co., 37 Am. & Eng. Ann. Cas. 681; Johnson v. Paltzer, 100 111. App. 171; Bell v. Mahin, 69 Iowa, 48. (2) If it could be said that there was a dismissal of the appeal by agreement, that fact would not release the surety upon the supersedeas bond. Bailey v. Rosenthal, 56 Mo. 385; Howell v. Mill Co., 36 Neb. 80, 38 Am. St. 696; Bank v. Land Co., 119 Minn. 209; Chase v. Beraud, 29 Cal. 138; Share v. Hunt, 9 Serg. & R. 409; Drake v. Smythe, 44 Iowa, 410; Ammons v. Whitehead, 31 Miss. 99; Ingersol v. Seatoft, 102 Wis. 476; Willis v. Chowning, 90 Tex. 617, 59 Am. St. 842; Boynton v. Phillips, 52 111. 210; Jacksonville Co. v. Hooper, 85 Fed. 620, 170 U. S. 704; 2 R. C. L., p. 316, sec.. 272. (3) The offer to throw off $250 from the accrued interest was a mere accommodation offer. It was without consideration and binding in law upon no one. This would not release the surety. Fidelity & G. Co. v. Boyd, 29 Ky. L. R. 598; Quillen v. Quigley, 14 Nev. 215; Jacksonville Co. v. Hooper, 29 C. C. A. 385, 85 Fed. 220; Drake v. Smythe, 44 Iowa, 410. (4) The surety upon the appeal bond was not a party to the suit so that respondent would be required to give it notice of the motion filed in the Court of Appeals on February 17, 1914. Notice was given to the appellant, the Frisco Railroad, and the surety was bound by whatever proceedings were had in the case. Bailey v. Rosenthal, 56 Mo. 385; Schwacker v. McLaughlin, 139 Mo. 341; Calhoun v. Gray, 150 Mo. App. 603; Brick Co. v. Neumeister, 15 Mo. App. 591. (5) The record shows that the appeal was dismissed by appellant; that thereafter, and upon motion of respondent, the dismissal was set aside and a judgment of affirmance entered by the Court of Appeals “for failure to duly prosecute said appeal.” The Frisco Railroad and the Equitable Surety Company, as a party to the record, are bound by this judgment of affirmance, subsequently entered, against which no action was taken. A judgment against a principal is conclusive against the surety and is not subject to collateral attack. Brick Co. v. Neumister, 15 Mo. App. 592; McFall v. Dempsey, 43 Mo. App. 369; Calhoun v. Gray, 150 Mo. App. 59; American Club v. Horchitz, 168 Mo. App. 39; Butler v. Wadley, 15 Ind. 502; Supreme Council C. B. L. v. Boyle, 15 Ind. App. 342; Piercy v. Piercy, 56 N. C. 214; Ingersol v. Seatoft, 102 Wis. 472; Thixton v. Goff, 5 Ky. L> R. 764; Tracy v. Maloney, 105 Mass. 90; White v. Prig-more, 29 Ark. 208; Shannon v. Dodge, 18 Col. 164; Hathaway v. Davis, 33 Cal. 161; Keithsbury v. Henry, 90 111. 255; Seymour v. Smith, 114 N. Y. 481; Huidepoker v. Fidelity & D. Co., 180 Fed. 292; Murison v. Butler, 20 La. Ann. 512; Murdock v. Brooks, 38 Cal. 601. (6) Appellant was not released of its obligation ■by a dismissal of the appeal by the St. Louis Court of Appeals. By such dismissal its liability became fixed, and when that court set aside the judgment of dismissal and entered an order affirming the judgment, its liability again became fixed. It was at no time released, and therefore was not deprived of its property withT out due process of law. Trust Co. v. Corbin, 192 Mo. App. 153; Casualty Co. v. Mining Co., 192 Mo. App. 337.
   WHITE, C.

The plaintiff recovered against the defendant as surety on an appeal bond, the judgment from which the defendant appeals.

On March 12, 3912, the plaintiff obtained judgment against the St. Louis & San Francisco Railroad Company for five thousand dollars. From this judgment the Railroad Company appealed to the St. Louis Court of Appeals, and gave bond in the usual form in the sum of $10,200, with this defendant, Equitable Surety Company, as surety.

On November 4, 1913, during the next term of said Court of Appeals, the Railroad Company dismissed its appeal. The Railroad Company in the meantime, had been ordered into the hands of receivers. After the appeal was dismissed the plaintiff brought suit against the Surety Company, defendant here, upon the appeal bond. While that suit was pending, the respondent ran across a recent decision of the Springfield Court of Appeals holding that the dismissal of an appeal was not a breach of the bond in such case and would not make the surety liable. The plaintiff then filed a motion in the St. Louis Court of Appeals asking that court to set aside the dismissal of the appeal and reinstate the case. This was done at the same term of the court, on January 20, 1914, and on February 17, 1914, at the same term, that court affirmed the judgment of the circuit court for failure to prosecute the appeal. The plaintiff then dismissed the pending suit on the appeal bond, and filed the present suit, alleging as a breach of the bond the affirmance of the judgment and the failure of the appellant Railroad Company to comply with and perform same.

The answer of the defendant in this case, in addition to a general denial, alleged that the defendant Railroad Company and the plaintiff, without the knowledge or consent of the surety, entered into a collusive agreement for a compromise judgment in the Court of Appeals, and that the appeal was dismissed by the plaintiff in pursuance of that agreement, whereby the surety was released from obligation on the bond.

The answer further alleged that after the appeal was dismissed in the Court of Appeals, as mentioned, the plaintiff caused the same to be reinstated and the judgment of the circuit court to be affirmed, without notice of any kind to defendant herein, and if the judgment were enforced defendant would be deprived of its property without due process of law, and was in violation of Article 2, Section 30, of the Constitution of Missouri.

The judgment of the circuit court was for $10,200, the penalty of the bond, with an assessment of the plaintiff’s damages at $5,000 and interest from the date of the judgment.

On the trial of the case records were introduced to show the proceedings as above stated, and that execution had been issued and no part of the judgment had been paid.

The defendant then .attempted to show the agreement set up in the answer.

While the appeal was pending R. M. Nichols, attorney for plaintiff, and Mr. Lon Hocker, who represented the Railroad Company, had one or more conversations looking to a compromise of the case. Finally they agreed to settle the case for the face of the judgment and one-half the accrued interest and costs — the interest at that time amounting to $500 — the amount to be paid to plaintiff in the settlement being $5,250. It appears from the testimony of both Mr. Nichols and Mr. Hocker that in pursuance of the arrangement the Surety Company was to be consulted and requested to pay the amount agreed upon. The conversation in which this agreement was reached, according to the testimony of Mr. Nichols, took place on the 4th of November, 1913, and immediately, on the same day, Mr. Hocker dismissed the appeal in the Court of Appeals.

The next day Mr. Nichols addressed a letter to the Surety Company relating the agreement and stating that Mr. Hocker had told him to write to the company and it would send him a check for the amount. After this letter was written Mr. Nichols had several telephone conversations with Mr. Geisinger, a clerk or bookkeeper in the office of the Surety Company, and with Mr. Maloney who, it appears, was the person in authority. Nothing came of the negotiations. Mr. Nichols for several days attempted to obtain an adjustment from the Surety Company, but without result, and then, on November 14th, ten days after the appeal was dismissed, filed the first suit mentioned. After that he was informed by Mr. Maloney that inasmuch as suit had been brought he would let the law take its course. The appellant, to prove an agreement in this connection, had Mrs. Peters swear on cross-examination that she “agreed” to accept $5,250 in settlement. But the only agreement between the plaintiff'and the defendant Railroad Company was as to the amount the plaintiff was willing to take and the Railroad Company willing to request its surety to pay. It was understood that the Surety Company would have to be a party to the arrangement before it was complete. Defendant introduced as a witness Mr. Pierce, attorney for the Surety Company, who testified that when the matter was suggested to him by Mr. Hocker he objected and demanded that the case be briefed and argued in the Court of Appeals. In this statement he was corroborated by Mr. Hocker who, nevertheless, had proceeded to make the arrangement as mentioned. The motion which the plaintiff filed in the Court of Appeals, asking to have the order of dismissal set aside, set forth the arrangement between Mr. Nichols and Mr. Hocker as to the settlement of the case, stating in detail the negotiations between them, with a copy of the letter mentioned to the Surety Company; the failure of the surety to pay in accordance with the arrangement; and that the dismissal of the appeal, if allowed to stand, would endanger the plaintiff’s security on the appeal bond; that the plaintiff had relied upon the assurance of Mr. Hocker that the Surety Company would pay immediately the amount agreed upon. Appended to this motion was an affidavit showing that it had been served on someone in the office of Mr. Hocker. Mr. Hocker admitted the service of this motion.

I. The first error assigned by the appellant is to the refusal of the circuit court to give defendant’s declaration of law in the nature of a demurrer ^ie evidence, because, it is claimed, all the evidence showed that the Railroad Company failed to prosecute its appeal with' diligence by reason of tlie compromise agreement between the jplaintiff and the Railroad Company, which agreement resulted in a material variance from the original undertaking of the defendant as surety.

The authorities are conflicting as to whether a compromise agreement between the appellant and respondent for an affirmance of the judgment appealed from will release the sureties on an appeal bond. Many jurisdictions hold that such an agreement does not release the surety. [First State Bank v. Stevens Land Co., 119 Minn. 209; Howell v. Alma Milling Co., 36 Neb. 80; Ammons v. Whitehead, 31 Miss. 99; Drake v. Smythe, 44 Iowa, 410.] These cases hold that a surety on an appeal bond is not released by an agreement between the appellant and respondent for an affirmance of a judgment, although the agreement involves a variation from the original undertaking, such as an agreement to stay execution for a limited time. And, in cases where it is held that a surety is released by an agreement between the appellant and the respondent to have the judgment affirmed, with a modification of the original liability, it is held necessary that the agreement should be founded upon a good consideration and be of such character as to be binding upon the parties. Absent these elements the surety is not in any case released. [U. S. Fidelity Co. v. Boyd, 94 S. W. (Ky.) l. c. 37; Jacksonville, M. & P. Ry. & Nav. Co. v. Hooper, 85 Fed. 620; Quillen v. Quigley, 14 Nev. l. c. 217.] There is no view of the evidence in this case which could justify a conclusion that any agreement was completed. It was understood between the plaintiff and the appellant that the payment would have to be made by the Surety Company. Although they agreed upon the terms of a settlement, each one knew perfectly well that the agreement would result in nothing unless the Surety Company approved it and paid the amount agreed upon. The Surety Company perfectly understood this, because the letter of Mr. Nichols mentioned it and the subsequent telephone conversations explained the matter fully. The appeal was prematurely dismissed, according to the understanding between the parties; it should not have been dismissed until the money was paid. It appears that Mr. Nichols, plaintiff’s attorney, didn’t know of the dismissal until he saw an account of it in the papers. There was no completed agreement binding upon anybody.

There is another entirely sufficient reason why this dismissal didn’t prejudice the Surety Company and couldn’t release it; that is, it was set áside and the cause reinstated and left to stand just as it was before any agreement was attempted. The complaint of the appellant is that by reason of this alleged agreement between the plaintiff and the Railroad Company the company failed to prosecute its appeal and allowed the case to be dismissed. If appellant was in danger of injury by reason of that action, the danger was removed when the dismissal was set aside and the case reinstated and all parties restored to status .quo.

II. Appellant further assigns as error the refusal of the court to give declaration of law number declaring that if the appeal was dismissed pursuant to an agreement between the plaintiff and the Railroad Company then the plaintiff was not entitled to recover from the defendant. What has been said settles that assignment. There was no evidence upon which to predicate such an instruction. As indicated above, the evidence shows that no binding agreement was entered into.

III. Appellant makes no specific assignment of error to the effect that the plaintiff should have been non-s^ed because affirmance of the judgment was without notice to it and, therefore, was an attempt to deprive it of its property without due process of law, contrary to Article 2, Section 30, of the Constitution of Missouri. But inasmuch as the appellant argues' the proposition in connection with the first assignment, that the demurrer to the evidence was improperly overruled for another reason, we will consider it.

It is not claimed that the defendant here was misled by the proceeding in the Court of Appeals, nor that anything which the plaintiff did in that action was intended to have that effect, although it is stated in the answer that the application to have the order of dismissal set aside and the cause reinstated was without the knowledge or consent of the Surety Company, and that the affirmance of the judgment was likewise without its knowledge or consent. The Surety Company can have no cause for complaint in this connection unless the reinstatement and subsequent affirmance, without notice to it of this contemplated change in the situation, would be a violation of its rights under the Constitution.

Some facts appear here which should have put the Surety Company on its guard if that were necessary in order that it might protect itself. It had full knowledge that the alleged agreement or understanding between the plaintiff and the defendant Railroad Company could not be carried out without its participation; it knew the attempted contract could not be executed unless it performed that act which would make it a binding agreement; and it knew that the dismissal in pursuance of that abortive agreement, whether to its advantage or disadvantage, was without any consideration moving to either party.

“Whatever may be said about a surety being bound by an agreement between the principal and- a judgment plaintiff which varied the terms of the original obligation, the authorities seem to be uniform upon another proposition which settles this contention. A surety on an appeal bond “submits himself” to the acts of his principal, and to the judgment itself as a legal consequence within the undertaking of his suretyship. He is bound by the result in the usual course of procedure, whether that result be reached by an adverse ruling or his principal’s default. [2 Black on Judgments (2 Ed.), section 587; Bailey v. Rosenthal, 56 Mo. 385; Drake v. Smythe, 44 Iowa, 410; Nolan v. Johns, 108 Mo. 431, l. c. 437; Jones v. Mastin, 60 Mo. App. 578, l. c. 583; Calhoun v. Gray, 150 Mo. App. 591, l. c. 603.] Under these authorities the - surety in signing an appeal bond voluntarily places “himself in privity with the principal,” and in the absence of fraud is concluded by any judgment following. He submits to the management of the ease by his principal. He cannot question the merits of a judgment, nor allege that it would not have been rendered “but for the fault or negligence of the principal.” [Drake v. Smythe, 44 Iowa, 410.]

The Surety Company in this case had no independent right to appear in the Court of Appeals and conduct that case, and is not injured by the lack of opportunity to appear there. When it signed the appeal bond it submitted itself to the management of the case by the St. Louis & San Francisco Railroad Company and there was no stage of the proceeding, from that time to the end of the case, where there was any obligation on the part of the plaintiff to serve the surety with notice of any contemplated action. The defendant Railroad Company was the only party with whom the plaintiff had to deal in the conduct of the case or upon whom it was obliged to serve notice. Notice of the motion to set aside the order of dismissal was duly served on the Railroad Company. The order was set aside and the case reinstated. It stood then, and was pending' for nearly a month, in all respects as it had been in the first place, the defendant company having full knowledge of the situation. The surety then stood exactly as it stood in the first place, bound by the subsequent action of its principal. It had “submitted itself” to the control of its principal in the management of the case, and no additional notice was required to be served on it. Then if the Railroad Company afterwards failed to prosecute its appeal with diligence, and allowed the case to be affirmed without filing any brief or making any argument, that was one of the consequences included in the original undertaking of the surety; We are unable to find that the trial court erred in any'particular complained of.

The judgment is affirmed.

Roy, C., concurs.

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

All of the judges concur.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    THE STATE v. IZA HILL, Appellant.
    Division Two,
    February 16, 1918.
    1. INFORMATION: Time-worn Frolixity. An information which charges all the essential elements of murder is sufficient, although it abounds in tiresome iteration.
    2. WITNESS: Under Sentence: Competency. A person undergoing a life sentence in the penitentiary is a competent witness on behalf of the State in a murder trial.
    3. -: -: Infamy. The common-law doctrine of infamy attendant upon a person convicted of crime has never been recognized in its fullness in this State. The statutes yet strip such a person of certain civil rights, such as the right to hold office, to vote at an election, to sit on a jury, and if sentenced to the penitentiary for a term less than life he is thereafter to be deemed civilly dead: but Sec. 6383, R. S. 1909, enacted in 1895, removed whatever restrictions to the competency of such a person to testify were supposedly retained in Section 2891, in that it provided that any person who has been convicted of a criminal offense is, notwithstanding, a competent witness- — although his conviction may be shown for the purpose of affecting his credibility.
    4. EVIDENCE: Intent: Former Attempt r.t Murder. Where defendant was charged with having entered into a conspiracy with another to murder her husband in order that she might collect an insurance policy on his life and divide the proceeds with her said co-conspirator, who in her absence actually committed the crime by cutting the husband’s throat and crushing his skull, testimony tending to show that several months before the homicide she attempted to poison deceased is admissible for the purpose of establishing the intent with which the crime was committed.
    5. -: -: -: Rule. The rule in such cases is that, where the act constituting the crime speaks for itself as showing the intent, or where the criminal intent is presumed from the act itself, evidence of a former attempt to commit the crime is not admissible; but where different inferences may be drawn regarding the intent with which the criminal act was done and the circumstances of the act may be susceptible of an interpretation indicating innocence, then such evidence is admissible. [Following State v. Patterson, 271 Mo. 1. c. 109, and State v. Myers, 82 Mo. 668.] Where defendant was absent at the time her husband was murdered, the actual commission of the murder was admitted by a plea of guilty by her alleged co-conspirator, and he' and her paramour (her co-indictee) alone testify to her having provoked the crime by offering an incentive for its commission (the collection and division of insurance on her husband’s life in her favor), and she assails the truth of their testimony, evidence that she had several months previously attempted to murder her husband by poisoning is admissible, not for the purpose of showing that the attempted crime was a part of the one committed, but to show the intent with which the homicide was committed.
    6. INSTRUCTION: Conspiracy: Crime Committed by One Conspirator Alone. An instruction defining the criminal liability of each of several persons who form a common design to effect a criminal purpose where one of them in furtherance of such design alone commits the crime, being in accord with the rule as announced and discussed in State v. Othick, 184 S. W. 106; State v. Darling, 216 Mo. 450, 459;- State v. Walker, 98 Mo. 95; and State v. Matthews, 98 Mo. 119, is approved.
    7. -: Acts and Declarations of Conspirator. An instruction which tells the jury that, if they believe from the evidence that a conspiracy existed between the defendant and one Jones to commit the crime in question, they might take into consideration any acts shown to have been done or declarations made by either during such conspiracy in furtherance of the common design; but that such acts or declarations not shown to have been done or made, and the acts and declarations of said Jones after he alone committed the crime, were not to be considered, correctly limits the jury to a consideration of the proper evidence.
    8. -: Capital Punishment. The Act of 1917 abolishing capital punishment contained no emergency clause and hence did not become operative until June 18th of that year, and in no wise affected the procedure in a trial which resulted in a conviction in May, 1917; and did not, therefore, render erroneous an instruction which authorized the jury, in case they found defendant guilty of murder in the first degree, to fix her punishment at death.
    9. -: -: Assessed at Life Imprisonment. Even though the statute abolishing capital punishment was in full force and effect at the time of the trial, an instruction which authorized the jury to fix defendant’s punishment at death or life imprisonment was not prejudicial to her rights if her punishment was fixed at life imprisonment.

      10. CONSPIRACY: Sufficiency of Evidence. Direct testimony by a witness that an express understanding bad been entered into by him and defendant to murder defendant’s husband, when supported by relevant collateral facts and circumstances, is sufficient to establish the conspiracy.
    11. -: Circumstances. Not only may a common purpose to commit a crime be proved by circumstantial evidence, but all the acts and circumstances indicative of the purpose between the accused and a third person may be shown to establish the relation.
    Appeal from Ray Circuit Court. — Hon. F. P. Divilbiss, Judge.
    Affirmed.

      J. E. Black, Eugene A. Farris and Albert P. Hamilton for appellant.
    (1) Defendant’s motion in arrest of judgment should have been sustained for the reason the information failed to charge the defendant with any offense. And because there is a total variance between the offense alleged in the information and the proof in this cause. (2) Alonzo Jones was incompetent as a witness in this cause, because at the time his testimony was given he was under sentence of life imprisonment in the penitentiary. Sec. 6376, R. S. 1909; Ex Parte Marmaduke, 91 Mo. 228. (3) The testimony given by Dr. McGaugh as to alleged poisoning of Lonnie Hill was incompetent and should not have been admitted, for the reason defendant was shown to have had no connection therewith. (4) Testimony as to facts transpiring since the culmination of the alleged conspiracy was incompetent and should have been refused. (5) Proof of a conspiracy should first be introduced and no evidence is competent before the proof of the conspiracy has been made.

      Frank W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for the State.
    (1) The information charges with certainty all the ■ essential elements of the crime and follows well-considered precedents. State v. Barrington, 198 Mo. 36; State v. Myers, 198 Mo. 232; State v. Spivey, 191 Mo. 91; State v. Thomas, 99 Mo. 256; State v. Bums, 99 Mo. 273. (2) It was not error to permit Alonzo Jones, under life sentence for his part in the murder, to testify, as he was a competent witness. Sec. 6383, R. S. 1909; Kelly’s Crim. Law & Prac., sec. 268; State v. Grant, 79 Mo. 113; State v. Long, 82 Mo. 82; State v. Land-rum, 127 Mo. App. 658; Sutton v. Fox, 55 Wis. 540; Wills v. Ind. Ter., 15 Okla. 196; Barbee v. Okla. Ter., 16 Okla. 569; State v. Sullivan, 20 R. I. 119. (3) It was not error to permit evidence of a former attempt of defendant to murder Lonnie Hill. It was competent to show motive, intent, general purpose, and a common scheme or plan. State v. Spaugh, 200 Mo. 594; State v. Collins,' 181 Mo. 250; State v. Bailey, 190 Mo. 279; State v. Dettmer, 124 Mo. 433; State v. Jones, 171 Mo. 407; State v. Rudolph, 187 Mo. 84; State v. Rasco, 239 Mo. 575; State v. Weisman, 238 Mo. 555; State v. Hyde, 234 Mo. 224; People v. Molineux, 168 N. Y. 264. (4)' The State was not in error in the admission and rejection of evidence; and if any errors were committed, they were fully cured by the instructions. State v. Napper, 141 Mo. 405; State v. Whelan, 148 Mo. 290; State v. Bateman, 198 Mo. 222. (5) The instructions given by the court were so full, clear and plain that the jury could not go astray thereunder, (a) Number 4 defines the crime of murder in the first degree, fixes the responsibility of each conspirator, and tells the jury what is necessary to find from the evidence before they can find the defendant guilty. State v. Thomas, 78 Mo. 337; State v. Shout, 263 Mo. 373. (b) Number 4b, on conspiracy, was correct in form and substance. State v. Bobbitt, 242 Mo. 284; State v. Truenell, 79 Mo. App. 245; State v. Davis, 80 Mo. 244; State v. Darling, 216 Mo. 459; State v. Othick, 180 S. W. 108. (c) Number 4c, on weight of testimony of co-conspirator, was correct under the law. State v. Grant, 79 Mo. 113; State v. Long, 82 Mo. 82; State v. Taylor, 98 Mo. 244. (d) Number 5, on the uncorroborated testimony of any accomplice alone, was in correct form. State v. Sassman, 214 Mo. '729; State v. Koek, 142 Mo. 524; State v. Walker, 109 Mo. 109. (e) Number 6, on credibility of witnesses and weight of testimony, is in correct and many times approved form. State v; Knock, 142 Mo. 523; State v. Hudspeth, 159 Mo. 200; State v. Thomas, 78 Mo. 341; State v. Henderson, 186 Mo. 492; State v. Hicks, 92 Mo. 434. (f) Number 9, submitting three forms of verdict, was in approved form. Appellant cannot complain of the form which told the jury they might assess the death penalty, as the jury fixed a lower punishment. She made no objection to this form when it was given. State v. Stockwell, 106 Mo. 40; State v. Wheeler, 108 Mo. 664; State v. Bobbitt, 215 Mo. 31; State v. King, 203 Mo. 571; State v. Coldsby, 215 Mo. 57. (6) The law does not require that the conspiracy be proved before acts and declarations thereunder can be shown. State v. Walker, 98 Mo. 103; State v. Shout, 263 Mo. 373; State v. Copeman, 186 Mo. 109.
   WALKER, P. J.

The appellant and one Marshall Dumas were charged in an information filed by the prosecuting attorney of Ray County with murder in the first degree. A severance was granted and at the February Term, 1917, of the circuit court of said county, appellant was tried and the jury failing to agree, the case was continued until the May Term, 1917. Upon a trial at this term appellant was convicted as chaiged and her punishment assessed at life imprisonment in the penitentiary. From this judgment she appeals.

Lonnie Hill, the party charged to have been murdered, was the husband of the appellant. At the time of his death he was in the employ of a citizen of Richmond. The last time he was seen alive was on the evening of September 18," 1916. The next morning, not having attended to his usual duties, his employer went to his room to ascertain the cause of his neglect. He found the deceased lying across the foot of his bed on his face. Calling to him and receiving no’ reply, the employer caught hold of him arid found not only that he was dead but that rigor mortis had set in. Upon the body being turned over, the face of the deceased and the adjacent wall, not before noticed, were found covered with blood. After the removal of the body to an undertaker’s several wounds, which appeared to have been inflicted with a sharp instrument, were found on the head and neck of the deceased. The wound on the neck had severed the jugular vein. This, as well as the wound m the head, which pierced the skull, was sufficient to produce death. Circumstances indicative of a guilty connection with the crime led soon thereafter to the arrest of appellant, her co-indictee, and one Alonzo Jones-, the latter being separately charged with complicity in the crime. Upon-the information being filed against him, he entered a plea of guilty and was sentenced to a life term in the penitentiary. It is principally upon his testimony that the jury found the appellant guilty. The parties are all negroes. The animus for the crime, as stated by Jones, was to procure $371 from an industrial insurance company in which the deceased held a policy payable to his wife, the appellant. Jones, while serving his sentence in the penitentiary, was taken therefrom and testified at the trial. He testified that he was hired by appellant to go from Kansas City to Richmond to kill the deceased upon the promise that she would pay him therefor $125 when she secured the money on the insurance policy; that in consummation of this conspiracy, he went to Richmond and killed the deceased and returned to Kansas City. The appellant testified that she had known Jones slightly for two or three -years, but had never entered into a contract with him or anybody else to kill her husband; that she knew nothing of the latter’s death until early one morning when Jones came to the house, where she was living with her co-indictee and before they were out of bed, seeking admittance; that he was admitted by her co-indictee, Dumas, who remarked to him when he entered, " 'Did you do that?’ and she says, ‘Do what?’ Jones said, ‘Tes,’ and she again said, ‘Do what?’ and Jones said, ‘Kill Lonnie Hill, that’s what!’ and then he said, ‘Don’t you open your mouth, or I will kill you,’ ” aud jumped at her with a knife.

There was also testimony that, appellant had attempted to poison the deceased with strychnine tablets dissolved in alcohol several months before his death. This she denied.

The motion for a new trial preserves these alleged errors for consideration: Permitting Alonzo Jones who was in the penitentiary under a life sentence for the murder of the deceased, to testify against the appellant; admitting illegal and incompetent testimony as to an attempted poisoning of the deceased by appellant without showing any connection between that offense and the one with which the appellant was charged; in giving-instructions numbered 4, 4a, and 4b, on the part of the State; in giving instruction 4c; improperly instructing the jury as to punishment; the sufficiency of the information to charge any offense; variance between the offense charged and the proof of same; and because there was no adequate proof of any conspiracy.

I. The contention as to the sufficiency of the information is not well founded. In charging the crime of murder all of the required essentials are employed. That the information abounds in tiresome iteration is true, but in its employment the pleader but followed time-worn precedents, always the safest course so long as a simpler and less prolix system of criminal pleading is not expressly authorized.

II. It is urged that error was committed in permitting Alonzo Jones to testify on behalf of the State while undergoing a life sentence in the penitentiary. Under the common law he would have been incompetent. This rule of exclusion, so far as it affects the right of one convicted of crime to testify, has long since been abolished, not only in England, but in the greater number of our States. [1 Wigmore Ev., secs. 519 and 524 and notes; 5 Chamb., Mod. Ev., sec. 3663 and notes; 11 Am. Jurist, 362; 15 Columbia L. Rev. 467.]

The amelioration of the rigors of the common law punishment for crime is as evident in regard to the admission of the testimony as it is in other phases of the history of jurisprudence. Statutes liberal in their latitude in this regard have been enacted not only on account of a more humane disposition to abate somewhat the severity of punishment, but from- necessity; it being found that the admission of this character of testimony was of more practical value in the administration of justice than the addition of infamy with its consequent deprivation of civil rights. [Bentham’s Rationale of Ev., book 9, pt. 3, Ch. 3, quoted at some length in 1 Wigmore, section 519, page 649, and lucidly epitomized in Appleton Ev., Ch. 3.]

The common law doctrine of infamy attendant upon a conviction for crime has never been recognized in its fullness in this jurisdiction. We have since the organization of the State had statutes defining the extent to which one convicted of crime was thereby stript of civil rights. These were by specific provisions made applicable to the different classes of offenses in our criminal code. They differed only in minor particulars and usually embraced -within their terms a deprivation of the right to hold office, to vote at an election, to sit on a jury and to testify as a witnéss. In addition, a general statute provided that a sentence of imprisonment in the , penitentiary for a term less than life, suspended all civil rights of the persons so sentenced, during the term thereof, and forfeited all public offices and trusts, authority and power; and the persons sentenced to such imprisonment were thereafter to be deemed civilly dead. This statute unchanged in its terms, is now Section 2891, Revised Statutes 1909. The statutes limiting the rights of citizenship upon conviction for crime remained practically without change until 1879, when the clause in each prohibiting convicted persons from testifying was eliminated ; otherwise, the limitation upon -the rights of those convicted has remained as it now appears in the present statutes. [See Secs. 4504, 4631, 4673, 4875, R. S. 1909.] In Ex parte Marmaduke, 91 Mo. 228, we held, in construing one of these disqualifying statutes, that all persons convicted after the going into effect of the Eevised Statutes of 1879 became competent witnesses by virtue of said revision. The correctness of this ruling has not been questioned.

The incompetency, therefore, of this class of witnesses has not existed since the revision of 1879, unless it can be said that section 2891, supra, is to be construed to preclude persons within its provisions from testifying. Whatever force section 2891 may heretofore have had in this regard has been removed by legislation. In 1895 (Laws 1895, p. 284) a statute, now section 6383, Eevised Statutes 1909, was enacted which provided that any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, etc.

Prom the foregoing it will be seen that a conviction of any offense, denounced by our law, will not render the convict incompetent to testify in a court of justice. Appellant’s contention must, therefore, be overruled.

III. The admission of testimony tending to show an attempted poisoning of the deceased by appellant several months before the homicide is urged as error. The burden of this objection is that no connection was shown between this attempt and the crime for which appellant was being tried. This complaint falls short of raising a tenable objection to the adjfllgstcm of the testimony. There was no pretense on the part of the State that the attempted crime was a part of the one committed. It was in no sense the purpose of. the introduction of this testimony to establish the crime, but to show the intent with whiph it was committed. On this ground testimony if this character, with the modification we will hereafter refer to, is held to be admissible.

White, C., in State v. Patterson, 271 Mo. 99, l. c. 109, has recently, with painstaking' care, reviewed and corn-piled the numerous Missouri cases on this subject, beginning with a learned opinion by Philips, C., in State v. Myers, 82 Mo. 558, which for many years has been the leading case on the subject. The rule deduced from these cases is, that where the act constituting the crime speaks for itself as showing the intent, or where the criminal intent is presumed from the act itself, such evidence is not admissible; but where different inferences may be drawn regarding the intent with which the criminal act was done and the circumstances of the act may be susceptible of an interpretation indicating innocence then such evidence is admissible. Here the appellant was absent at the time of the homicide. Its actual commission was admitted by the witness Alonzo Jones. He and the appellant’s paramour, Dumas, alone testify to her having provoked the crime by offering an incentive for its commission. She assails the truth of this testimony. Clothed as she is with a presumption of innocence, different inferences may be drawn as to the intent with which the crime was committed. If evidence existed susceptible of an interpretation indicative of her innocence, she would have been entitled to its admission; on the other hand, if facts existed of the attempted commission by her of a former act against the deceased of a kindred nature to the one with which she was charged, taken in connection with the facts and circumstances of her life and that of the deceased, all of which were in evidence, then the testimony was properly admitted. It is true that this evidence is based primarily upon the testimony of the witness Dumas, but the evidence of the former crime was not confined to her alleged statement. Confined to Dumas, its credibility might be open to serious question, but not its admissibility. Dumas’s testimony, however, is corroborated by that of the -doctor who stated that he had treated the deceased for strychnine poisoning at about the time the appellant stated she had made the attempt. The character of this testimony, therefore, as tending to show an intent to commit the crime for which she was on trial, is sufficiently established to authorize its admission.

IV. The giving of instruction number four is alleged to have been error. This instruction defined the criminal liability of each of several persons who form a common design to effect a criminal purpose and one of same in furtherance of such design alone commits the crime. This general instruction is followed by a concrete application of the rule to the facts in evidence. We have recently had occasion in an opinion by Williams, J. (State v. Othick, 184 S. W. 106, to discuss and define in accordance with common law principles and our own rulings the doctrine of criminal liability of persons guilty of a conspiracy to commit crime and the consequent equal guilt of all upon a showing that the crime conspired was committed by one of them in consummation of the common purpose. We have also had occasion to fully discuss this subject in State v. Darling, 216 Mo. 450, 459, and m what are termed in our criminal annals the Bald Knob cases. [State v. Walkers and Matthews, 98 Mo. 95, 119, 125, 135.] The instruction here under review clearly conforms to the rule announced in these cases and its correctness is therefore too well established to be the subject of further controversy.

Instruction 4a defines the technical words necessary to constitute murder in forms too frequently approved to waste words in discussing them.

Instruction 4b told the jury in substance that, if they believed from the evidence that a conspiracy existed between the appellant and Alonzo Jones to commit the crime in question, they might take into consideration any acts shown to have been done or declarations made by either during such conspiracy in furtherance of the common design; but that such acts or declarations not shown to have been thus done or made, or the acts or declarations of said Jones after the death of the deceased, were not to be taken into consideration; or put more concretely, that such acts and declarations were not admissible against the appellant, after the consummation of the common enterprise. This instruction also correctly defines a conspiracy as applied to the facts at bar and a common design as constituting an essential of such conspiracy. The law as therein announced does not violate the rule as to the admission of evidence of this character and the instruction is therefore not subject to valid criticism. [State v. Roberts, 201 Mo. 702, 728; State v. Gatlin, 170 Mo. 354; State v. Walker, supra.]

Instruction 4c defined the competency of the witness Jones, who was serving a life sentence in the penitentiary, and stated that his conviction could be shown to affect his credibility. This was m accordance with section 6383, supra, the application of which we have discussed. The conclusion reached in regard thereto disposes, of the objection to this instruction.

Y. It is contended that the jury was improperly instructed in regard to the punishment. Three forms óf verdict were given; one for a finding of not guilty and two for guilty, in one of the latter the death penalty was authorized and in the other life imprisonment. The ground of appellant’s contention is not given and must therefore be inferred. The record discloses that the trial and conviction was had in May, 1917. This was subsequent to the enactment of the statute abolishing capital punishment, which was approved April 13, 1917, which, however, on account of the absence therefrom of an emergency clause, did not become operative until June 18, 1917. This statute, therefore, could in no wise affect the procedure m this ease.

However, if the act had been operative, it would afford no basis for complaint. The instructions correctly defined the crime' and the forms of the verdict only had reference to the character of the punishment. The appellant’s punishment was fixed at life imprisonment ; she cannot complain, therefore, of the form of the verdict which prescribed the death penalty. The test of error is the presence of prejudice which did not exist.

VI. It is finally contended that there was no proof of a conspiracy, and that the testimony of the declarations of the so-called conspirators and the instructions based thereon were without authority. A review of the record does not sustain this contention. Not only by direct testimony, but by relevant collateral facts and circumstances, was it shown that an express understanding had been entered into by the appellant and Alonzo Jones to commit this crime. In view of our rulings on this subject the existence of the conspiracy was therefore sufficiently established. NoLghjly^ye we held that a common purpose to commit a crime may be proved by circumstantial, evidence, but that all the acts and circumstances indicative of this purpose between the accused and a third person may be shown to establish the relation. [State v. Shout, 263 Mo. 360; State v. Harrison, 263 Mo. 642.]

There was no reversible error and the judgment should be affirmed. It is so ordered.

All concur, Paris, J., in result and in all except paragraph three (3).'


author: FARIS, J.

text:
    THE STATE v. ROBERT B. MUNROE, Appellant.
    Division Two,
    February 16, 1918.
    1. INSOLVENT PRIVATE BANK: Insolvency of Owner: Indictment. An indictment charging that defendant as agent of a certain private bank received money on deposit, knowing that said bank was at the time insolvent and in failing circumstances, should charge the insolvency of the owner, and the evidence adduced and the instructions given should follow the indictment in that respect, and if the indictment does not charge that the owner of the private bank on said day was insolvent, in addition to charging that the bank itself was insolvent, no conviction can stand.
    2. -: -: Legislative Construction of Statute. The amendment in 1887 of the existing statute making it larceny for “any president, director, manager, cashier or other officer of any banking institution” to receive or consent to the receiving into such bank any deposit of money or other valuable thing, after such officer or agent had knowledge of its insolvency, by inserting after said quoted words the words “or the owner, agent or manager of any private bank or banking institution,” was a legislative construction that the said existing statute was not applicable to a private bank.
    3. -: -: Present Statute. The present statute (Sec. 4585, R. S. 1909), enacted in 1895 (Laws 1895, p. 158), specifically requires that the agent or cashier or other officer of a private bank must have had knowledge that “the owner or owners of any such private bank are insolvent or in failing circumstances” before he can be convicted of larceny for receiving money on deposit in such private bank.
    -4. -: -: Prima-Facie Evidence of Insolvency, If the pri-. vate bank had not failed at the time the money was received on deposit, but closed the next day on account of the death of the owner on that day, no prima-facie evidence of its insolvency can arise from the fact that it closed, but the insolvency of the owner is a matter of proof. [Distinguishing State v. Salmon, 216 Mo. 1. c. 625.]
    5. -: Indictment, Proof and Instruction. Not only must the indictment for receiving deposits into an insolvent private tank charge that the owner or owners were insolvent at the time the deposit was received, but the proof must likewise establish that fact, and the jury must be instructed to so find before they can convict the accused.
    6. -: Agency of Accused. It is not necessary in order to com vict a defendant under the statute making it a felony to receive money on deposit in an insolvent private bank, that he should have had ‘the ultimate authority in the management of the bank’s business or financial policy, or that his acts or delinquencies should have been the cause, or one of the causes, of the bank’s Insolvency; but if the proof shows that he was in charge of the bank with the knowledge and apparent consent of the owner, or that he was entrusted by the owner with the duty of receiving deposits, or that he was, with the apparent knowledge and consent of the owner, permitted to act for the owner in receiving deposits, he Tgas the agent of the owner within the purview of the statute, and if the other -things required by the statute are proven, he may be convicted.
    7. -: Evidence of Other Deposits. Evidence of divers deposits ■ made by other persons in the bank in question about the same time the one for which defendant is on trial was made, is not •competent evidence, even as shedding light on defendant’s intent or as establishing his agency, and its admission is error.

      8. INDICTMENT: Variance: Draft: Money: Different Counts. The statute makes it just as great an offense to receive “other valuable things” on deposit in an insolvent bank, as it does to receive real money; and prudence always suggests that, where the valuable thing while not money represents money, the charge be made in two or more counts, and thus avoid the danger of a fatal variance; such, for instance, as might arise (though not decided) where the thing deposited was a draft and the indictment charged only that the deposit consisted of money.
    Appeal from Jefferson Circuit Court. — Hon. E. M. Beering, Judge.
    Reversed and remanded.

      Clyde Williams, Adrian Steele, J. L. Hornsby, Paul Bakewell and Major & Bevelle for appellant.
    (1) There was a failure of proof or a fatal variance, the charge in the indictment being that defendant received $800 in lawful money of the United States, when the evidence showed he received a draft for $800 drawn upon a bank in the State of Louisiana.- State v. Mispagel, 207 Mo. 557; State v. Castleton, 255 Mo. 201; State v. Rosefelt, 184 S. W. 904; State v. Salmon, 216 Mo. 521; State v. Shapiro, 216 Mo. 359; State v. Plant, 209 Mo. 307; State v. Ballard, 104 Mo. 634; Lory v. People, 229 111. 268; Goodheu v. People, 94 111. 37; People v. Cronkite, 260 111. 438; Commonwealth v. Howe, 132 Mass. 250; Commonwealth v. Woods, 142 Mass. 450; State v. Quackenbush, 108 N. Y. 953; Carr v. State, 104 Ala. 43; United States v. Grreve, 65 Fed. 488; United States v. Smith, 152 Fed. 542; Bishop on Statutory Crimes (3 Ed'.), sec. 346; 1 Mitchie on Banks and Banking, p. 427; Wharton’s Criminal Evidence, sec. 122; Balbach.v. Frelinghuysen, 15 Fed. 675; United States v. Hess, 124 U. S. 486; Evans v. United States, 153 U. S. 587. (2) There was no evidence that defendant was such- an agent of the Jefferson County Bank as to make him criminally liable as contemplated by Sec. 4585, R. S. 1909, and defendant’s peremptory instructions should have been given. Sec. 4585, R. S. 1909; 31 Cyc. 1386; 31 Cyc. 1206; State v. Sarlls, 34 N. E. 1130; Gillett on Crim. Law, sec. 410, p. 344; State v. Sattley, 131 Mo. 491. (3) The court erred in admitting evidence which was incompetent and prejudicial to defendant: (a), Notes which are not shown to be the assets of the bank; (b), Other and different specific deposits from the one which was charged in the indictment; (c), Reports of the Bank Commissioner and correspondence between the Bank Commissioner and O. M. Munroe, of which defendant had no knowledge; and (d), Statements made by defendant some time after the death of O. M'. Munroe and based upon information acquired by defendant as administrator. State v. Burlingame, 146 Mo. 226. (4) Under, the provisions of section 4585, if the prosecution is against the owner, agent or manager of a private bank, such person must have knowledge, at the time of the receiving of the deposits, not of the insolvency or failing circumstances of the private bank, with its segregated assets, but, as the statute specifically provides, must have such knowledge of the insolvency or failing circumstances of the owner of such private bank. It is quite plain that the court submitted the case to the jury on the wrong theory and through wrong instructions, to-wit, that the defendant’s knowledge at the time of the receipt of the deposit in question, was of the insolvency or failing circumstances of the private bank with its segregated assets, instead of his knowledge of the insolvency or failing circumstances, at the time, of the owner, and as the statute plainly states.

      Frank W. McAllister, Attorney-General and S. E. Shelley, Assistant Attorney-General, for the State.
    (1) This case should not be reversed because of alleged variance between the allegations of the indictment and the proof, (a) Under an indictment alleging that defendant, as the agent and manager of a private banking institution, received a “certain deposit of money, to-wit, eight hundred dollars in lawful money of the United States,” knowing that said institution was then insolvent and in failing circumstances, proof that defendant so received, crediting the depositor’s account with the amount thereof, a bank draft drawn on a foreign bank, is sufficient to sustain said allegation. Michie on Banks and Banking, p. 427; State v. Booth, 186 S. W. 1019; State v. Salmon, 216 Mo. 520; State v. Quackenbush, 98 Minn. 515; Parrish v. Commonwealth, 136 Ky. '377. (b) Acceptance of a draft for deposit, and the crediting of the depositor’s account with the amount thereof, is equivalent to the receipt of said amount of money. State v. Booth, 186 S. W. 1019; State v. Salmon, 216 Mo. 520; Burton v. United States, 196 U. S. 302; Ellis v. State, 138 Wis. 513. (2) The court did not err in overruling defendant’s peremptory instruction in the nature of a demurrer to the evidence at the close of the State’s case. State v. Warner, 74 Mo. 85; State v. Pollard, 174 Mo. 614; State v. Wertz, 191 Mo. 578; State v. Swain, 239 Mo. 728; State v. Stewart, 116 Mo. App. 330. (3) The court did not err in admitting the following evidence because incompetent and prejudicial to the defendant, (a) Notes which are not shown to be the assets of the bank. The notes were shown to have been found among assets of the bank, and registered on the records of the bank. Said evidence was admissible. Michie on Banks and Banking, p. 437; Parrish v. Commonwealth, 136 Ky. 377. (b) Other and- different specific deposits from the one which was charged in the indictment. The purpose for which they were admitted was limited and defined by State’s instruction. Said evidence not sufficiently prejudicial to constitute reversible error, (c) Report of the Bank Commissioner and correspondence between the Bank Commissioner and O. if. Munroe, of which defendant had no knowledge. Defendant was present and assisted in the preparation of the report. The report was competent. Michie on Banks and Banking, p. 436; State v. Salmon, 216 Mo. 466. The correspondence between the Bank Commissioner and O. M. Munroe concerned said report.
   FARIS, J.

Defendant was tried in the circuit court of Jefferson County, upon an indictment charging him with having, as agent of a certain private bank, received a deposit of money knowing that said bank was. at the time insolvent and in failing circumstances. Being convicted upon this charge he has, after the usual motions, appealed.

Such of the facts, as are necessary to an understanding of the points raised upon this appeal, run substantially thus: On and prior to the 9th day of April, 1915, one Otis M. Munroe, the father of defendant, was the owner of a private bank in the town of JDe Soto, known as the Jefferson County Bank. Defendant was and had been for some years employed in this bank, and had assumed the title of assistant cashier. The deposit, for the receipt of which defendant was convicted, was made on the 1st day of April, 1915, and consisted of a draft for the sum of $800, drawn by a building-and-loan association of Shreveport, Louisiana, upon a bank situate in the latter State. The above draft was on the date last mentioned deposited by Sol Hohenthal, to the credit of his sister, Gertrude Hohenthal.

At the time of the making of this deposit, but two persons were employed in this bank; namely, defendant, who seems to have been acting as receiving teller, and cashier, and one Harry Brown, who seems to have been the bookkeeper. The father of the defendant, who,. as' stated, was the owner of this bank, was at the time lying ill in a hospital in the city of St. Louis. This owner had been seriously ill for something more than a year, and had been unable during that entire period to lie in the bank or to give much personal attention to the affairs thereof; though the proof shows that in most instances wherein loans of any magnitude were sought to be made with the Jefferson County Bank, Otis M. Mun-roe, was constantly consulted and had the deciding voice; but the proof is abundant that defendant was in full charge of this bank in all other respects, and that he received deposits, paid out money to depositors, and made and passed on numerous small loans.

This bank continued in business without any overt financial difficulties until the said 9th day of April, 1915; on which date Otis M. Munroe died. Upon the death of the latter, and solely on account thereof, this bank was closed. Much evidence came in upon the question of the solvency or insolvency of the bank itself, and the proof tends to show that on the day at which the bank closed for the reason stated, it was (its segregated assets alone regarded) actually insolvent. There is no proof touching whether Otis M. Munroe, the owner of this bank, was or was not solvent on the first day of April, 1915, though there is proof in the record that he claimed, shortly prior to his death, to be worth some $44,000 more than his debts. Upon the trial of the case no attention seems to have been paid, by either side, as to the financial condition of Otis M. Munroe; both sides confining the proof adduced by them respectively to the condition of the bank itself with reference to the latter’s solvency or insolvency, as compared to the actual segregated assets thereof which were used solely in the banking business. Upon the trial much proof was offered that defendant in addition to receiving the deposit for which he was herein convicted, had received about the same time from other persons divers similar deposits.

The indictment upon which this prosecution was bottomed is strenously assaulted, and it therefore becomes very pertinent in our discussion of the case. 0-mitting signature and merely formal parts, all of which are conventional, and none of which is attacked, this indictment read thus:

“The grand jurors of the State of Missouri, impaneled, sworn and charged to inquire within and for the County of Jefferson, and State aforesaid, upon their oath present and charge that Eobert B. Munroe, on the 1st day of April, 1915, at the County of Jefferson, in the State of Missouri, being then and there the agent and manager of a certain private banking institutioñ, known as the Jefferson County Bank, doing business at De Soto, in said county- and State, a certain deposit of money, to-wit, eight hundred dollars, in lawful money of the United States, the money and property of one Gertrude Hohenthal, of the value of eight hundred dollars, unlawfully and feloniously did take, have ajid receive on deposit in said Jefferson County Bank, after he, the said Robert B. Munroe, had knowledge of the fact, and well knew that the said Jefferson County Bank was then and there insolvent and in failing circumstances, and so the said Robert B. Munroe, the money aforesaid, to-wit, eight hundred dollars, the money and property of the said Gertrude Hohenthal, in manner and form aforesaid, unlawfully and feloniously did steal, take and carry away; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”

Such other facts as shall become pertinent to the points which we find it necessary to discuss will be set out by us in connection with that discussion.

I. It is contended by defendant that this prosecution proceeded from the beginning upon an erroneous theory. That is to say, that, since the Jefferson County Bank was not an incorporated bank, but a private bank wholly owned by Otis M. Munroe, the indictment should have charged the insolvency of said Munroe the owner, and the evidence adduced and the instructions offered should have followed the indictment in this behalf. ]We think it too plain for argument that this point is well taken.

The section of the statutes (Sec. 4585, R. S. 1909) upon which this prosecution is bottomed was first enacted in 1877. [Laws 1877, p. 239.] It then made it larceny for “any president, director, manager, cashier, or other officer of any banking institution” to receive or consent to the receiving into such bank any- deposit of money or other valuable thing, after such officer or agent of the bank had knowledge of the insolvency of “such bank or banking institution.” In 1887, this statute was amended by inserting therein the words “or the owner, agent or manager or any private bank or banking institution.” [Laws 1887, p. 162.] This amendment was a legislative construction that the section prior to the amendment was not applicable to a private bank.

In 1895 the entire section was repealed and a new section enacted in lieu thereof. [Laws 1895, p. 158.] This latter enactment is still the law upon the subject. [Sec. 4585, R. S. 1909.] As enacted in 1895, this statute contained (and yet and now contain) the significant language which we italicise for emphasis, thus making the law under which defendant was convicted read thus:

“If any president, director, manager, cashier or other officer of any banking institution, or the owner, agent or manager of any private bank or banking institution, or the president, vice-president, secretary, treasurer, director or agent of any trust company or institution doing business m this State, shall receive or assent to the reception of any deposit of money or other valuable thing in such bank or banking institution or trust company or institution, or if any such officer, owner or agent of such bank or banking institution, or if any president, vice-president, secretary, treasurer, director or agent of such trust company or institution, shall create or assent to the creation of any debts or indebtedness, in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution or trust company or institution, after he shall have had knowledge of the fact that such banking institution or trust company or institution, or the oivner or owners of any such private bank, is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof shall be punished in the manner and to the same extent as is provided by law for stealing the same amount of money deposited, or valuable thing: Provided, that the failure of any such bank or banking institution or trust company or institution shall be prima-facie evidence of knowledge on the part of any such officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit.” [Sec. 4585, R. S. 1909; Laws 1895, p. 158.]

In the face of this language it is idle to contend that defendant can be convicted without charging in the indictment and without showing the fact by the evidence offered upon the trial, that “the owner” of this private hank “was insolvent or in failing circumstances ,” when defendant received the deposit here in question.

The case of State v. Salmon, 216 Mo. l. c. 525, is urged upon our attention as laying down a contrary rule. We think the two cases are easily to be distinguished. There the learned jurist who wrote the case was dealing with the proviso to the above-quoted section which, relating to a matter wholly evidentiary, makes the failure of any such bank or banking institution prima-facie evidence of the insolvency thereof. * In the Salmon case the bank had failed. In the case at bar, the Jefferson County Bank had been closed solely on account of the death of the owner thereof. Whether that owner was insolvent, ‘therefore became a matter of proof. There was no statutory presumption about it.

It is perhaps unfortunate that in a somewhat loose discussion of the point, Judge Fox followed, in the Salmon case, the older case of State v. Buck, 120 Mo. 479, which latter case was decided in 1894, before the present statute was amended so as to require that the insolvency of the “owner or owners” of a private bank at the time of receiving a deposit must be shown as a condition precedent to conviction. Judge Fox ruled that even in the case of a private bank, the fact of the failure thereof should (just as the letter of the statute provides) be held to be prima-facie proof that a private bank, as well as an incorporated bank, was insolvent when the deposit was received. Absent the fact of failure, as here, we apprehend no such ruling would have been made. Certainly, no such ruling would have been warranted.

No one can read our present statute upon' this subject without concluding that the indictment for receiving deposits into an insolvent private bank must charge that the owner or owners thereof were insolvent at the time of receiving such deposit. Likewise, the proof must show this fact, and the jury must be instructed to so find, before they are authorized to convict the accused. That the statute may authorize the triers of fact to presume such insolvency from the fact that the bank has failed is an element'which is not in this case, and therefore one which we shall permit to rest with the cases already adjudged (State v. Salmon, supra; State v. Buck, supra), till we shall meet it again face to face. It follows that the indictment herein is bad, for that it failed to charge that defendant had knowledge of the fact that Otis M. Munroe, the owner of the private bank, was insolvent and in failing circumstances when defendant received into said bank the deposit in question, and that the instructions which followed the error of the indictment in this behalf are likewise erroneous. Of course, it also follows, as an inevitable deduction, that there was a failure of proof upon this necessary and essential question.

II. Since, if the State is so advised, this case may be retried, it may be well to say that if the proof shall show that defendant was in charge of this bank, with the knowledge and apparent consent of the owner thereof, or that he was entrusted by the owner thereof duty of receiving deposits, or that he was, with the apparent knowledge and consent of the owner, permitted to act for the latter in receiving deposits, he was the agent of the owner within the purview of the statute under discussion, and other things which are made requisite by that statute, being proven, he may be convicted. It is not necessary that defendant should have had the ultimate authority in the management of this bank, that is, that he should, as to all matters, have had full authority to control the business or financial policy of the bank; nor that his acts or delinquencies should have been the cause, or one of the causes of the bank’s insolvency, if it was insolvent. The statute is fairly plain, and it requires no such showing; neither does the reason of the thing, nor the evil sought to be prevented by this statute, require such a showing. "We think there was ample evidence that defendant was the agent of the owner of the bank, within the purview of section 4585, supra, when he received the deposit in question. The instruction given by the court of its own motion was more than fair to defendant, and he has no ground of complaint for that the court nisi refused the instructions defining agency, which he asked.

III. It is contended that the court erred in admitting evidence of divers deposits made by other persons, in the bank in question, about the same time as that one was made for which defendant was upon his trial. This has been held by this court to be error. [State v. Burlingame, 146 Mo. l. c. 226.] "We see no reason to change the ruling upon this question, since it can throw no light upon defendant’s intent, nor is it of any value in demonstrating the agency of defendant, as what we say above makes manifest.

IV. Defendant also complains that a fatal variance arose upon the trial, in that while the indictment charged that defendant received a “deposit of money, to-wit, eight hundred.' dollars, m lawful money of the United States,” the evidence conclusively showed that the thing of value actually received by defendant was a draft for the sum of eight hundred dollars drawn by a building-and-loan association of Louisiana, upon a bank in Shreveport, in the latter State. It will be noted that the statute under which this prosecution was had (Sec. 4585, R. S. 1909) makes it just as great an-offense to receive “other valuable things” as it does to receive real money. In fact, the Legislature seems to have had in mind that a vast majority of the banking business of this world is done with valuable paper other than money, and to have prophetically provided for just the identical contingency that arose in this case. There is nothing in a case of doubt to prevent the procuring of an indictment, or the filing of an information, in two counts; one of which may charge that money was received, while’the other shall aptly charge the real character of the “valuable thing” which was received by the defendant. It is well-nigh incomprehensible why the prosecuting attorneys in preparing informations do not, when in donbt as to the nature of the valuable papers forming the subject of a criminal' offense and which, while not money yet represent money, charge the offense in two or more counts, and thus once for all obviate the danger of a fatal variance. With this observation, we will leave this question open, since the case must in any event be reversed for other errors, which we have already pointed out. Observing further, however, that it is not nearly as difficult and troublesome to file an information in two counts, as it is for an appellate court to justify a wholly unnecessary variance. The late-ruled cases apposite here on this question fully show this. [Cf. State v. Mispagel, 207 Mo. 557; State v. Salmon, 216 Mo. l. c. 521; State v. Plant, 209 Mo. 307; State v. Bouslog, 266 Mo. 73; State v. Booth, 186 S. W. 1019.]

Many other matters are urged upon our attention, but since all such are things in which either there is no merit or things which will not happen upon a new trial, we need not take up space in discussing them.

For the errors noted, let the case be reversed and remanded for a new trial not inconsistent with what we have herein written.

It is so ordered.

All concur.


text:
    ELIZABETH ASHBAUGH v. DEAN ASHBAUGH, H. H. ROBINSON, MARY TAYLOR, and PAUL GIBSON, Executor of Last Will of HENRY H. ASHBAUGH, Appellants.
    Division Two,
    February 16, 1918.
    1. ESTATE BY ENTIRETY: Not Subject to Husband’s Debts. An estate by the entirety is created by a conveyance to the husband and wife by a deed in the usual form, each being thereby vested with the entire estate, which on the death of the husband continues in the wife as an entirety, and is not subject to devise by him, or division among his heirs, or sale to pay his debts.

      2. -: Married Woman’s Acts. The Married Woman’s Acts (Secs. 8304, 8307-9, R. S. 1909) have not changed the common-law rule which recognizes estates by the entirety. The only effect of those statutes was to protect the wife’s property by removing it from the control of her husband and giving it into her management!
    3. -: One-Half Interest to Each. A deed between the grantors . "and H. H. Ashbaugh and Elizabeth Ashbaugh, his wife, each an undivided one-half interest, parties of the second part,” followed by the active words of “Grant, Bargain and Sell, Convey and Confirm unto the said parties of the second part,” a description of the land and the usual habendum and warranty clauses, created an estate. by the entirety, and not a tenancy in common. The words “each an undivided one-half interest in the premises’’ being a mere recital which does not purport to vest any estate, do not vary or affect the operative words necessary to vest the estate.
    4. -: -: Intention: Random Words of Scrivener. In ascertaining the intention of the parties to a deed effect will be given to the usual and ordinary meaning attached to the language used; but that intention is not made different by random, uncertain and inconclusive phrases inserted by an ignorant scrivener.
    Appeal from Lincoln Circuit Court. — Hon. E. B. Wool-folk, Judge.
    Affirmed.

      R. H. Norton and Avery, Dudley & Killam for appellants.
    (1) The doctrine of estates in entireties is repugnant to and inconsistent with the policy of our Married Women’s Acts and should not be applied to conveyances made since their enactment. R. S. 1909, secs. 8304, 8307 and 8309; Russell v. Russell, 122 Mo. 235; Bains v. Bullock, 129 Mo. 117; State ex rel. v. Maguni, 187 Mo. 244; Williams v. Railroad, 188 Mo. 146; State ex rel. v. Perkins, 139 Mo-. 177; Taylor v. Pullen, 152 Mo. 434; Abramsky v. Abramsky, 261 Mo. 117; Boutell v. Shellaberger, 264 Mo. 70. (2) The Ashbaugh deed per force of its own terms created a tenancy in common between Henry H. and Elizabeth Ashbaugh, and the defendant John D. Ashbaugh took one-half of the property under the Ashbaugh will. Linville v. Greer, 165 Mo. 397; Bradshaw v. Bradbury, 64 Mo. 334; Bruenman v. Carroll, 52 Mo. 315; Chew v. Kellar, 171 Mo. 223; Waldermeyer v. Loebig, 222 Mo. 551; Williamson v. Brown, 195 Mo. 337.

      Frank J. Duvall and Hostetter & Haley for respondent.
    As to the interpretation to be put upon the deed because of the existence of the clause in the premises reading “each an undivided one-half interest,” this court must overrule the case of Wilson v. Frost, 186 Mo. 311, before it . can hold that such clause made the grantees take as tenants in common instead of taking as tenants by the entirety. Correctly speaking there is no survivorship in estates by the entirety. The surviving person does not acquire a new title but holds only the same title which he or she took in the beginning, freed of the contingency. The statute, in recognition of this injustice, has abolished joint tenancies, with their incident of survivorship, but it has not touched estates by entirety; on the contrary, out of over-caution estates to husband and wife are excepted by that very statute. Sec. 2878, R. S. 1909; See. 8844, R. S. 1889. The statute abolishing joint tenancies did not apply to estates by entirety, Gibson v. Zimmerman, 12 Mo. 385; 'Hall v. Stephens, 65 Mo. 670. The true nature of estates by the entirety and the distinction between them and joint tenancies and how affected by the Married Women’s Statutes, is pointed out in Frost v. Frost, 200 Mo. 474; Bains v. Bullock, 129 Mo. 119; Whittaker v. Lewis, 264 Mo. 208; Moss v. Ardrey, 200 Mo. 595; Russell v. Russell, 122 Mo. 237.
   WHITE, C.

The action was brought under Section 2535, Revised Statutes 1909,. to determine title to forty-two acres of land in Lincoln County. The plaintiff is the widow of Henry H. Ashbaugh, deceased. The defendant Dean Ashbaugh is the son by a former marriage of Henry H. Ashbaugh. The plaintiff claims title to the tract as an estate by entirety under a conveyance made to lier and Henry H. Ashbaugh, as husband and wife, during said Ashbaugh’s lifetime. The conveyance was made in 1909, and Henry Ashbaugh died on April 11, 1914. The defendant son claims under the will of Henry H. Ashbaugh, which purported to give him a half interest in the forty-two-acre tract mentioned, and a half interest to the plaintiff, widow.

During the life of Henry H. Ashbaugh lie and his wife joined in a deed of trust conveying this land to H. H. Robinson, trustee for Mary J. Taylor, cestui que trust, to secure a debt, and by reason of their interest in the property thus acquired those two were made parties defendant. Paul Gibson, executor of the last will of Henry' H. Ashbaugh, was made party defendant and in his answer set up that the personal estate of Henry H. Ashbaugh was insufficient to pay the debts which had been allowed against the estate and that the land mentioned was liable for the payment of such debts.

The conveyance by which Henry H. Ashbaugh and his wife acquired title to the land begins as follows:

“general warranty deed.
“This indenture, made on the 11th day of September, A. D. one thousand nine hundred and nine, by and between John A. Crank and Laura Crank, his wife, of. Lincoln County, Missouri, parties of the first part, and H. H. Ashbaugh and Elizabeth Ashbaugh, his wife, each an undivided one-half interest, of the County of Pike, in the State of Missouri, parties of the second part:
“Witnesseth, that the said parties of the first part, in consideration of the sum of one dollar and other valuable consideration to them paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents Grant, Bargain and Sell, Convey and Confirm, unto the said parties of the second part, their heirs and assigns the following described lots, tracts or parcels of land, lying, being and situate in the county of Lincoln and State of Missouri, to-wit:”

Then follows a description of the land, and habendum and warranty clauses to parties of the second part, in the usual form.*

The judgment was for the plaintiff, and defendants appealed.

I. An estate hy the entirety is created by a conveyance to the husband and wife by a deed in the usual form. It is one estate vested in two individuals who are by a fiction of law treated as one person, each being vested with the entire estate. Neither can dispose of it or any part of it without the concurrence of the other, and in case of the death of either the other retains the estate. It differs from a joint tenancy where the survivor succeeds to the whole estate by right of the survivorship; in an estate by entireties the whole estate continues in the survivor. The estate remains the same as it was in the first place, except that there is only one tenant of the whole estate, whereas before the death there were two.

In the recent case of Stifel’s Union Brewing Co. v. Saxy, ante page 159, decided by this court at the present term,the authorities in this and other States were reviewed at length, and the doctrine as it always has existed in this State was restated with completeness and precision. It was held in that ease, upon the point in issue, that the interest of the husband in lands held by himself and his wife by the entirety could not be subjected to the payment of his debts. This would seem to dispose of the. claim of the executor in this case, and likewise the claim of the attempted devisee, Dean Ashbaugh, provided the deed by which the title here was conveyed to the Ashbaughs created an estate by the entireties in Henry Ashbaugh and the plaintiff.

II. It is argued by the appellants that the Married Women’s Acts (Sections 8304, 8307-8-9) have changed the common law rule which recognized the doctrine of estate by the entirety; it is not claimed that any statnte in express terms destroys the estate, bnt the common law rule in that respect “is inconsistent with the legislative policy of the State,” as indicated by the several statutes emancipating married women, from the control and domination of their husbands in relation to their property. The Saxy case, just cited, settles that proposition. It is there held that the purpose and effect of the statutes relating to married women was not to destroy the quality of any estate which the wife might have, but to protect her property by removing it from the control of her husband and giving it into her management; that such acts did not destroy the unity of the husband and wife, which treats them as equals in respect to estates of this character, but removed the jus mariti, “without affecting in any other way the estates granted to the wife alone or, to'the husband and wife as tenants by the entirety.”! The discussion of the principle is so full and complete in that case that it is unnecessary for our purpose here to do other than refer to it.

Attention is called in the opinion to Section 2878, Revised Statutes 1909, which in express terms allows conveyances to husband and wife to retain their common-law effect.

III. It is finally urged by the appellant that the conveyance in this case by its terms creates a tenancy in common and not an estate by the entirety. They invoke the rule laid down so often that the intention of the parties to an instrument of this character must control, even as against words having a technical legal meaning, ánd seem to fear that the lure of technical refinement and scholarly exegesis may cause the intention, in a case like this, to be passed by. They call attention to the recital in the premises of the deed “H. H. Ashbaugh and Elizabeth Ashbaugh his wife, each an undivided one-half interest.” It is claimed that here is an express intention to create a tenancy in common. It will be noted that this expression appears in the premises of the deed as a recital merely. It is followed by the granting clause which is in the usual form. The recital in question does not appear in the orderly parts of the deed, the part by which an estate is vested, limited and warranted; it does not by any language purport to vest in the grantees an undivided half interest and does not say in what they are to have an undivided half interest. It might as well be in the consideration paid, so far as the terms of an instrument go, as in the property conveyed.

A conveyance almost exactly like this was construed by this court in the case of Wilson v. Frost, 186 Mo. 311. The deed in that case conveyed to the husband and wife an estate by the entirety in the orderly parts of the deed, the granting clause, the habendum and the warranty, but in the recital in the premises of the deed, after naming the parties of the first and second part, used this expression:

“That is to say, to the said William Cook the one undivided one-half interest and the said Mary E. Cook the other one' undivided half interest in the following described land. ’ ’

This was followed by the granting clause, the description, habendum and warranty. It shows, therefore, the clear expression of an apparent intention to vest in the grantees tenancy in common. In that respect it differs from the deed under consideration. The court held that if the conveyancer had known the difference between a tenancy in common and a tenancy by entirety he would have put in the proper place words creating the estate intended, and since he put the language mentioned in the premises as a recital, he didn’t know what the words meant and therefore it couldn’t be said that there was an intention to create a tenancy in common. It was held that if the words were to be given any meaning in the place where they were stated it was probably the intention to give assurance to the wife that she was to have as much interest in the land as her husband, and they would not, where they appeared, change the common law effect of the granting clause and the habendum in the deed.

Iii determining the intention of the parties to an instrument of this character, effect must be given the usual and ordinary meaning attached to the language used in such instruments, and it cannot be said that the intention is made different by random, uncertain and inconclusive phrases inserted by an ignorant scrivener. As is sometimes said, the intention of the grantor in a conveyance must control unless it conflicts with some inflexible rule of law; or, as otherwise expressed, the courts will not be swerved from the law because some grantor or conveyancer has attempted to do what the settled, rules of law will not permit. [Utter v. Sidman, 170 Mo. 284; Waldermeyer v. Loebig, 222 Mo. 540; Cornwell v. Wulff, 148 Mo. 542, l. c. 571.]

It is a general rule that the intention must be ascertained from the language used, from what the grant- or actually said, and not what he may have meant to say. It is likewise a general rule that operative words are necessary to vest an estate. [McKinney v. Settles, 31 Mo. 541; Becker v. Stroeher, 167 Mo. l. c. 322; Coffman v. Gates, 110 Mo. App. l. c. 486; 13 Cyc. 542.] In the deed here no operative words follow or precede the recital, nor are there any words to indicate a desire to have an undivided one-half interest in the land vest in the grantees. No intention appears which would prevent the vesting of an estate by entirety.

The judgment of the circuit court is affirmed.

Roy, C., concurs.

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

All of the judges concur.


author: ROY, C.

text:
    L. L. CORYELL v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant.
    Division Two,
    February 16, 1918.
    1. ATTORNEY’S FEE: Invalid Statute. Following Santa Re Railway Company v. Vosburg, 238 U. S. 56, it is conceded that the Kansas statute, in so far as it permits a shipper to recover a reasonable attorney’s fee, in addition to damages sustained by reason of a railroad company’s failure to furnish him freight cars within a reasonable time, is contrary to the Constitution of the United States.
    2. PENAL STATUTE: Enforcement by Another State. Statutes giving a private action against the wrongdoer, while sometimes spoken of as penal in their nature, are not, either in the liability imposed or the remedy given, purely penal. Penal statutes which the courts of another State will not enforce are those imposing punishment for an offense against the State which the Governor has power to pardon.
    3. -: -: Penalty for Failure to Supply Freight Cars. A statute of Kansas giving to a shipper who had made application for cars for the shipment of his freight a right of action against a railroad company which neglected to supply such cars within a reasonable time, and permits him to recover five dollars a day for each day’s delay as exemplary damages, and in addition his actual damages, is not penal in the sense which forbids its enforcement in Missouri.
    Appeal from Jackson Circuit Court. — Hon. Kimbrough Stone, Judge.
    Affirmed (conditionally).

      Thomas B. Morrow, George J. Mersereau, John H. Lathrop and J. D. M. Hamilton for appellant.
    (1) Section 7201, 7202 and 7203 of the General Statutes of Kansas of 1909 are penal and criminal in their nature, and cannot be made the basis of a cause of action brought in a court of the State of Missouri, (a) The courts of one jurisdiction will not enforcp the penal laws of another. Story on Conflict of LaAvs, sec. 621; 1 Wharton on Conflict of Laws, (3 Ed.), p. 14, par. 4; Kimball, v. Davis, 52 Mo. App. 212; The Antelope, 1 Wheat. 66; Dale v. Railroad, 57 Kan. 601; Sherman v. Gassett, 4 Gilman, 523; Bell v. Farwell, 52 N. E. 346. (b) The Kansas Act is penal within the scope of the rule set out above. Wharton on Conflict of Laws, supra; Huntington v. Attrill, 146 U. S. 657; Denniek v. Railroad, 103 U. S. 11; Lees v. United States, 150 U. S. 476; Railroad v. Matthews, 165 U. S. 1; Diversy v. Smith, 103 111. 378, 42 Am. Rep. 14; Marshall v. Railroad, 46 Fed. 269; Raisor v. Railroad, 215 111. 47; Matheson v. Railroad, 61 Kan. 667; Dale v. Railroad, 57 Kan. 601; Grain & Lumber Co. v. A. T. & S. F., 116 Pac. 906 ; Milling Co. v. A. T. & S. F., 82 Kan. 256; Meeker & Go. v. Lehigh Valley, 236 U. S. 412; G.' S. Kans. 1909, sec. 5610, sub. div. 4. (2) An allowance of attorney’s fees cannot be sustained. A. T. & S. F. v. Vosburg, 238 U. S. 856.

      E. H. Batson for respondent.
    (1) Sections 7201, 7202 and 7203, General Statutes of Kansas 1909, are neither penal nor criminal, and are properly the basis of an action brought thereon in the courts of Missouri. Huntington v. Attrill, 146 U. S. 657; Grain Co. v. Santa Fe, 85 Kan. 281. (2) This court must accept the construction of the Supreme Court of Kansas on said sections 7201, 7202 and 7203. Grain Co. v. Railway, 85 Kan. 281; State v. Chandler, 132 Mo. 155; Northcutt v. Eager, 132 Mo. 265; State ex rel. v. Macon County Court, 41 Mo. 453; Stephen v. Metzger, 95 Mo. App. 609; Bank v. Hoffman, 74 Mo. App. 203. (3) This court should not reverse outright the decision herein for the „ erroneous alloAvance of an attorney’s fees, but should order a remittitur for the sum allowed therefor. Burdict v. Railroad, 123 Mo. 221; State ex rel v. Edwards, 144 Mo. 467. ■
   ROY, C.

Plaintiff sued under the Kansas Reciprocal Demurrage Act for the delay of the defendant in furnishing cars ordered by plaintiff to be furnished in that State. There was judgment for plaintiff for $504.50 and for $100 as an attorney fee. Defendant has appealed.

Said act as shown in the General Statutes of Kansas, 1909, is as follows:

“Section 7201. "When the owner, manager or shipper of any freight of any kind shall make application in writing to any superintendent, agent or other person in charge of transportation of any railroad company, receiver, or trustee, operating a line of railway at any point, that cars are desired upon which to ship any freight,’ it shall be the duty of such railway company, trustee, or other person in charge thereof to supply the number of cars so required at the point indicated in the application within a reasonable time thereafter, not to exceed six days from the receipt of such application, and shall supply such cars to the person or persons so applying therefor, in the order in which such applications are made, without giving preference to any persons. Provided, if the application be for ten cars or less, the same shall be furnished in three days; And provided further, if the application be for thirty cars, or more, the railway company may have ten full days in which to supply the ears. The time provided in this act for the furnishing of cars as hereinafter set out shall be deemed a reasonable time, but this shall not be construed as excusing such railroad from the duty "of furnishing such cars in a less time than the time mentioned in this act when a less time is reasonable, and the shipper makes application for such cars to be furnished in a less time: Provided, That whenever any railroad company is prevented from complying with such demand to furnish cars as aforesaid by any accidental or unavoidable cause, which could not by the use of reasonable foresight and diligence have been avoided, and supplies the same in a reasonable time thereafter, or offers to do so, then the liability for the damages herein provided for and for actual damages and attorney’s fees shall not accrue.
“Sec. 7202. Said application for cars shall state the number of cars desired, the place at which they are desired, anch the time they are desired, provided that the place designated shall be at some station or public switch on the line of its road.
“Sec. 7203. When the cars are applied for-under the provisions of this chapter, if they are not furnished, the railway company so failing to furnish them shall pay to the party or parties so applying for them, the sum of five dollars per day, for each car failed to be furnished as exemplary damages to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain, for each car failed to be furnished, together with reasonable attorney-fees, to be recovered in any court of competent jurisdiction; but nothing in this act shall in anywise affect the right or remedy of any shipper or other person, as the same may exist at common law or under any statute, to recover on account of failure, delay or refusal to furnish cars, nor to exempt in anywise any such railroad company from any of the provisions of the .railroad laws of this state or from any of the' obligations imposed upon railroad companies- and common carriers by the common law.”

• The petition alleged ninety-nine days’ delay of cars at $5 a day, and also alleged actual damages amounting to $58.50, and prayed judgment accordingly, and also for $100 as an attorney’s fee.

I. This case .came to tins court on the claims made by the defendant that the Kansas statute, in so far as it provided for the recovery of any attorney’s fee, it contrary to the Federal Constitution. Since the appeal that contention has been sustained in A., T. & S. F. Ry. Co. v. Vosburg, 238 U. S. 56.

II. It is conceded by counsel that the courts of one State will not enforce the purely penal statutes of another State. "What is a penal Statute in the contemplation of that rule? That question is clearly answered in Huntington v. Attrill, 146 U. S. l. c. 667) where it is said.

“Penal laws, strictly and'properly, are those imposing punishment for an offence committed against the State, and which, by the English and American constitutions, the Executive of the State has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.”

That language was used with reference to the question now under discussion. We have been cited to no authority contrary to that ruling. We hold that the Kansas statute is not penal in the sense which forbids its enforcement in this State.

If the respondent will, within ten days in this court, enter a remittitur for $100 the amount allowed in the judgment as an attorney’s fee, the judgment will be affirmed for the amount thereof less the remittitur; otherwise it will be reversed and the cause remanded for a new trial.

White, C., concurs.

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

All of the judges concur.