text:
    THE STATE v. FRANK VEST, Appellant.
    Division Two,
    January 6, 1914.
    1. HOMICIDE: Manslaughter: Assault on Defendant's Wife: Evidence. Where the evidence in a prosecution for murder, when most liberally construed in that respect, tends to show only that the defendant came home in the evening and was told by his wife that the deceased had, a few minutes before, “come out in his night clothes and tried to force her into his bedroom,” but she escaped, and thereupon the defendant went to the deceased’s room, where he found him in bed, and shot him, there is no issue of manslaughter to be given to the jury, especially in view of. the fact that defendant’s testimony does not show that he shot in a frenzy, hut that he ordered deceased out of his house, and shot him, as he says, because deceased was in the act of shooting him.
    2. -: Evidence: Dying Declarations. Statements made when all hope of life had been abandoned, are admissible as dying declarations, and their admissibility is not destroyed by the fact that the next morning the declarant expressed a feeling that, he might live if blood poison did not set in.

      Appeal from Holt Circuit Court. — Ho». William C. Ellison, Judge.
    Affirmed.

      W. A. Blagg, C. R.'Ellison, J. S. Shinnabarger, Stokes $ Stokes, and B. L. Minton for appellant.

      John T. Barker, Attorney-General, and W. M. Fitch, Assistant Attorney-General, for the State.
   ROY, C.

Under a prosecution for murder in the first degree, defendant was convicted of murder in ^ie second degree and his punishment assessed by the jury at ten years in the penitentiary. He is a farmer, twenty-six yearsi of age, living on a farm where he was born and has lived continuously. At the time of the tragedy he had been married about four years. He had one child about two years old. The wife and boy had both been sick, and were convalescent; the wife being able to do part of the housework. She was assisted by Pearl Barker, a girl of about twenty years of age, who had been reared in the neighborhood and who had been with this family for about five weeks. ,

Guy Stanley, the deceased, was a young man, “big and strong,” who had been employed on the farm for several months; he had been reared in the community. He was addicted to excessive drinking. The defendant used intoxicants, but the evidence does not show that he became intoxicated. The defendant and the deceased were congenial', going out together on trips to town.

The killing occurred on Sunday, December 3,1911, at about seven-thirty in the evening.

Glenn Burge, a sixteen-year-old boy and cousin of the defendant, testified that in watermelon time prior to the killing, Stanley told him in language not proper to quote here, that he was going to have sexual intercourse with the wife of the defendant, and that, if the defendant came in, there would be a shooting match; and that the deceased made a similar statement in the potato patch when they were digging potatoes; and also testified that the deceased was in the habit of carrying a revolver.

Bert Stewart testified that about a week before the killing he was going to town with the deceased in a buggy and that he told Stanley that if he was bothering Mrs. Vest any he had better go away from there or he would get his head shot off; and that Stanley fired five shots from his revolver and said that was a game two men could play at. There was evidence tending to impeach the reputation of this witness. Neither of those witnesses told anyone about what the deceased told them until after the killing.

Glenn Burge and Pearl Barker testified that on Friday evening, before the killing, in the absence of defendant, in the kitchen of the Vest home, and while Mrs. Vest was in the adjoining room, Stanley came in intoxicated, having a pistol, indulged in vulgar talk, said that he could have sexual intercourse with Pearl Barker, and made other offensive statements. The evidence tended to show that this language of the deceased was overheard by Mrs. Vest. The evidence does not show where either the defendant or Stanley stayed all night that night. After the scene in the kitchen, Stanley left, and Mrs: Vest testified that Pearl Barker took charge of the pistol. On Saturday, the defendant and Stanley drove together to the town of Oraig, returning about ten o’clock that night. Mrs. Vest and Pearl Barker testified that Stanley was drunk and came into the room where they were in bed together, while the defendant was in the kitchen, and that he lay down across the foot of their bed and pinched their limbs. They made him get up and told him to go to bed. He got up, but lay down on the floor in their room; and the defendant had some difficulty in getting him to bed in the adjoining room.

About nine o’clock Sunday morning, the defendant and Stanley left home afoot to go to Bigelow, about three miles distant. Stanley returned to dinner. The defendant took dinner at the home of Ed Burge, his uncle, about three-quarters, of a mile distant. There were several visitors at the Vest home that Sunday afternoon, including a neighbor, Mrs. Smith. There was some card playing, and the time appeared to be pleasantly spent as to all parties concerned,, including Mrs. Vest, Pearl Barker and Stanley. Mrs. Vest and Pearl Barker testified that during the afternoon Stanley in a jocular way spoke of having pinched them the night before, and that he acted like he was going to pinch Mrs. Smith; that she said for him to behave himself, saying that she was too old a lady for him to be fooling around. About six o’clock everyone left the Vest home, except Mrs. Vest, the baby and Stanley. Just after dinner that day, the defendant, his uncle and Lester Burge, his cousin, drove across the river to Fargo, Nebraska, and were about twenty minutes in a saloon where they drank a beer.

Lester Burge testified that they got back from Fargo and he took Vest in a buggy to Vest’s home, letting him out at the gate about one-eighth of a mile from defendant’s house, about seven o’clock. That as "they parted, defendant in a jocular way said, “I have blood in my eye. ’ ’

Alex Cunningham testified that he heard the defendant make the same statement while on the road that night. After leaving the defendant at his farm gate, Lester Burge drove back home and was putting-up his horse when a phone message was received at the Burge home from Vest, calling them down to the Vest home. Just at that time Pearl Barker and Lee Blevins, who had gone to church together, in a buggy, finding there were no church services, reached the Burge home. They and Mr. and Mrs. Burge drove hastily in the same buggy to the home of the defendant. Defendant was at the yard gate, about thirty feet from the house, with a magazine shotgun in his hand. They found deceased lying on the floor of his bedroom, in great agony. He was placed on the bed. The defendant had telephoned for a doctor and for the deputy sheriff to bring the coroner. Dr. Hogan reached there about eight o ’clock. He testified that he found two or three gunshot wounds, in the back about the seventh rib, on the right of the spine and two or three inches apart, both indicating that the discharge of shot had gone straight into the lungs. There was another wound in the middle third of the left arm, and indications that the shot were "in the flesh of the shoulder. All the wounds were about the size of a silver dollar, and were made by a shotgun. He saw the bedclothes lying on the bed; one of the bed covers was white; there were holes through the bedclothes corresponding to the wound on the body. Dr. Hogan stated that the white bedcover was. powder stained, and another witness testified that the holes in the bed-covers were nearer one end than the other. The doctor stated that a few minutes after he arrived Stanley told him that he had been shot to death. Morphine and atrophine were administered hypodermically to relieve his sufferings. The doctor testified that from about an hour after being given the medicine the sufferer would be at times, unconscious, but, when roused and asked a question, would come to himself and seem to speak in a rational way; and that his. condition remained such until sometime next forenoon. Several witnesses testified to the same effect. The next morning he stated that if blood poison did not set up and they would take good care of him he would get well.

The witness Adams testified that he got to Stanley’s bedside early in the night and asked him if he realized his condition, to which Stanley answered that he was £ £ shot all to hell. ’ ’ Witness said to him, £ £ Guy, they tell me yon can’t live bnt a little while,” to which Stanley answered, £ ‘ I hate to quit in the middle of the game.” During the night he said that he was “about all in,” and said to his brother and sister that they would soon have no brother.

Tom Bridgeman said to him, “Guy, what was the trouble between you and Frank?” He said, “There wasn’t any trouble.” Then he asked about insulting his wife, and Guy said, “Nothing more than pinched her leg. ’ ’

Adams further testified that Bridgeman asked Stanley how Frank came to shoot him and he said, “Frank came to the door and says, ‘Guy, I am going to shoot you,’ or ‘kill you,’ ” and that he, Stanley, answered, “I wouldn’t do that.” At another time, deceased said that he answered-defendant by saying, ‘ ‘ Help yourself, go to it. ’ ’ Stanley stated that the defendant then opened up the pump-gun on him. Tom Bridgeman’s testimony was- to the same effect. Bridgeman further testified that the deceased said, “I was lying on my right side with my back to the door and I was about half asleep and had been in bed but a short time. ’ ’

Mrs. Yest testified that just after six o’clock on Sunday evening after the others had been gone awhile, she was putting the baby to sleep and the following occurred:

“While I was trying to put him to bed, Mr. Stanley took off his hat and coat and went into his bed room, and I thought he was going to bed. In a few minutes, he came out in his. night clothes, and tried to force me into his bed room, and I told him to go away, and I called him a dirty dog, and I told him to tend to Ms own business, or I would tell my husband when he came home. He said he didn’t give a God damn for him.
“Q. And what did he do then? A. Took hold of me, and grabbed me, like he was going to force me into his bed room, and I got away and ran ont the south kitchen door, and went around to the front gate.
“Q. Pretty soon after that, whom did you see coming? A. My husband.
“Q. Tell the court and jury, in your own way, Mrs. Vest, what Frank did or what you said to him when he came up to you? A. He asked me what the matter was, and I told him that Guy had come out in his night clothes and tried to force me into his bedroom, and then he asked me where he was, and I told him he was in the house, and we came on in the house together. ’ ’

She also testified that she then told her husband about the conduct of Stanley on Friday and Saturday nights preceding. She stated that her husband was mad, crazy mad, and terribly excited after hearing what she had told him. The defendant testified that he got home about six-thirty and found his wife at the front yard gate crying, and that she told him that just a few minutes before he came home Stanley had come into her room in his night clothes and had grabbed her and was going to force her into his bed room and she told him to go away and then he grabbed her and was going to take her in there, and also told him how he had acted on Friday night and Saturday night before and that she said, “I want you to take him away from here; I am afraid of him.”

Defendant testified that he then went into Stanley’s bed room and found Stanley lying on his right side, with his back towards the front of the bed. He further testified:

“A. I asked Guy, ‘Why have you been treating Iva the way you have?’ He said: ‘I don’t know as it is any of your business.’ I says, ‘I want you to get up and get out of here, and never set foot on my premises again. You need killing.’ He said, ‘Hop to her,’ and grabbed Ms revolver, and then I grabbed my shotgun that was sitting behind the door, and fired three shots as quick as. I could.
“Q. What did you do that for? A. Well, sir, I thought there was one of three things- for me to do: I either had to run, and leave my family there alone and leave my home, or shoot him, or be shot and killed. •
“Q. Did you know that he had a revolver about the— A. Yes, sir.
“Q. Did you see it then? A. Yes, sir.”

No pistol was found about the deceased after the shooting.

Several witnesses impeached the reputation of the defendant for morality, but stated that he was truthful and paid Ms debts.

There was an objection to the introduction of the dying statements of the deceased on the ground that the deceased was not conscious when they were made, and that they were not made under a realization of impending death. All of the witnesses who testified to dying statements testified that the deceased, when making such statements, appeared to understand what he was saying.

The court instructed on first and second degree murder and gave all other instructions' usually given in such cases, including those of presumption of innocence, reasonable doubt and self-defense. Though requested, the court refused to instruct on manslaughter.

OPINION.

I. The trial court did not err in refusing to instruct on manslaughter. In State v. Grugin, 147 Mo. 39, there was a conviction for murder. The defendant on being correctly informed that his sixteen-year-old daughter had been ravished by his son-in-law Hadley, took his shotgun and went a quarter of a mile to where Hadley was at work, and said to Mm, “Jeff, whatever possessed you to rape Alma, my daughter 1 ’ ’ Hadley replied, “I’ll do as I damn please about it.” The accused testified that Hadley then pitched forward as. though he was coming at him, whereupon he shot and killed Hadley. It was held that an instruction for manslaughter should have been given in that case. Judge Sherwood said: “Commenting on the subject of the ‘Adequacy of the Cause of Excitement,’ Bishop remarks.: ‘The doctrine under this head, appearing as it does in the books in illustrations rather than in rules, hardly admits of reduction to rule. Not attempting an impossible exactness, we may deem it in a general way to be that the law accepts human nature as God has made it, of as it manifests itself in the ordinary man, and every sort of conduct in others which commonly does in fact so excite the passions, of the mass of men as practically to enthrall their reason, the law holds to be adequate cause.’ [2 Bishop’s New Cr. Law, sec. 701.]”

That language seems to indicate that every sort of provocation is a matter of consideration for the jury, but like all other legal rules the one there laid down is subject to some very clear exceptions and limitations. One rule is that mere words, will not of themselves amount to provocation sufficient to reduce murder to manslaughter. [State v. Barrett, 240 Mo. 161; State v. Bostwick, 245 Mo. 483.] It was held in State v. France, 76 Mo. 681, that in order to reduce murder to manslaughter where a husband killed another on account of his adultery with the defendant’s wife, it was necessary that the killing should have occurred at the very time of the adultery.

In State v. Holme, 54 Mo. 153, the court cited Maher v. People, 10 Mich. 212, in which the assault was committed half an hour after the husband had seen his wife and the party assaulted entering and emerging from a wood under suspicious circumstances, and had followed up and assaulted the man while laboring under great excitement, tlie perspiration all over his face. Bnt this court said in reference to that case: “But of that case it may well he observed, that the facts were all so recent and so commingled together that they might all be considered as a part of the res gestae, and hence admissible because making up a part of the same transaction. In cases of that kind, where the prisoner is smarting under a provocation so recent and strong that he cannot be considered as being at the time the master of his own understanding, the offense may be reduced to manslaughter, hut as a general principle for the interest and well-being of society the old rule is the better one.”

It appears from those authorities that there are some very clear rules with reference to what is an adequate provocation. As was said in State v. Barrett, supra, speaking of that rule, that mere words do not constitute adequate provocation, “This rule is well established, and we imagine it would not be the part of wisdom to substitute in its place one fluctuating or less rigid, which would require the accused to he judged in each case according to the excitement incident to his natural temperament when aroused by real or fancied insult given by words alone. ’ ’

Law is made for the restraint of passions. The libertine must restrain his lust. The father of a family, finding his wife or daughter in the grasp of an adulterer, is tenderly considered by the law, and if in his frenzy he slays the wrongdoer, his offense is reduced to manslaughter. Where such violation of a man’s home is attempted in his absence and fails, the law does not consider that there is. any adequate cause to arouse the passions of the husband or father to such an extent as to overthrow his reason. He is required to restrain his passion for slaughter. Especially is that true where, as in this case, the party killed was evidently drunk, not only when he insulted the wife, but when killed by the husband. Stanley’s indecent behavior bad been tolerated by Mrs. Vest prior to Sunday nigbt, no doubt because it was attributed to bis intoxication. We call attention to tbe fact that tbe testimony of tbe defendant does not show that be shot in a frenzy, but that be ordered Stanley out of tbe bouse, and sbot bim, as be says, because Stanley was. in tbe act of shooting bim.

II. There was no error in admitting evidence as to tbe dying statements. They were made when all hope of life was abandoned. Tbe fact that at one time tbe next morning Stanley expressed a feeling that be might live. if blood poison did not set up, does not destroy their admissibility. It was only tbe momentary glimmer of hope for one who felt bow bard it was “to quit in the-middle of tbe game.” It is sufficient that tbe declarations were made at a time when there was no hope of recovery. [State v. Craig, 190 Mo. l. c. 339.]

We have not bad tbe advantage of a brief in behalf of tbe defendant, but have diligently searched tbe record for errors, guided by tbe motion for a new trial, and we have been unable to find any fault with tbe conduct of tbe trial.

Tbe judgment is affirmed.

Williams, C., concurs.

PER CURIAM.

Tbe foregoing opinion prepared by Rot, C., was modified by tbe court and as modified is adopted by tbe court.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. JOHN UNDERWOOD, Appellant.
    Division Two,
    January 6, 1914.
    1. DEFINITION: Felony and Misdemeanor.. The term “felony,” in Missouri Statutes, means any offense for which the offender on conviction shall be liable to be punished with death or imprisonment in the penitentiary. The term “misdemeanor” includes every offense punishable only by fine or imprisonment in the county jail or both.
    2. APPEAL: Not Perfected Within Twelve Months: Charged With Felony: Punished by Fine. Where defendant was charged with an assault with intent to kill, which is a crime for which the offender is liable to be punished by imprisonment in the penitentiary, and is convicted and his punishment fixed at a fine and imprisonment in the county jail, his appeal, if not perfected within twelve months after it was granted, will be dismissed. His offense was not changed from a felony to a misdemeanor by the punishment assessed, especially where he 'was found “guilty as charged.” In such case the fact that the statute relating to the time within which appeals in misdemeanor cases are to be taken had been repealed does not affect his duty to perfect his appeal within the time prescribed by the statute relating to appeals in felony cases.
    Appeal from Shannon Circuit Court. — Ho». W. N. Evans, Judge.
    Appeal dismissed.

      Orchard & Cunningham for appellant.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
   WALKER, J.

In an information filed in the circuit court of Shannon county, appellant was charged under section 4482, Revised Statutes 1909, with, an assault with, intent to kill, and upon a trial was found guilty as charged and his punishment assessed at three months’ imprisonment in the county jail and a fine of $100', this being the minimum punishment prescribed for the offense under the provisions of section 4482, supra.

On tbe 13th day of September, 1911, he was granted an appeal to this court, but same was not perfected and the transcript of the proceedings filed here until June 7, 1913. Under the provisions of section 5313, Revised Statutes 1909', the Attorney-General filed a motion to dismiss the appeal on the ground' that the same had not been perfected within twelve months from the time the same was granted.

Appellant contends in opposition to this motion that he has never been convicted of a felony, and that when this appeal was taken there was no limit as to the time of perfecting an appeal in a misdemeanor case, the statute in relation thereto (Sec. 2717, R. S. 1899) having been repealed in 1909 (Laws 1909, p. 462) prior to the commission of the offense herein charged and not re-enacted until long subsequent thereto. [Laws 1913, p. 226.]

The distinction between felonies and misdemeanors made by our statute renders appellant’s contention without merit. As we held in State v. Woodson, 248 Mo. 705, the term “felony,” under our code, means any offense for which the offender on conviction shall be liable to be punished with death or imprisonment in the penitentiary. [Sec. 4923, R. S. 1909.] The term “misdemeanor” includes every offense punishable only by fine or imprisonment in a county jail or both. [Sec. 4925, R. S. 1909.]

The offense with which the appellant is charged is one for which he was liable to be punished by imprisonment in the penitentiary, but the minimum punishment for this offense was by fine or imprisonment in the county jail or both. His offense, therefore, was not changed from a felony to a misdemeanor by the assessment of his punishment at a fine and imprisonment in a county jail, especially in view of the fact that the jury did not find him guilty of a common assault, which, it might have done under the provisions of section 4904, Revised Statutes 1909, but found him “guilty as charged” and assessed his punishment at the minimum prescribed for the felony. The conviction having been for a felony, it was proper that the appeal be perfected to this court. This not having been done within the time required by the statute (section 5313, supra), the motion of the Attorney-General to dismiss the appeal should be sustained, and it is so ordered.

All concur.


author: WILLIAMS, C. PER CURIAM.

text:
    THE STATE ex rel. BEN SELLECK et al., Relators, v. JOHN P. GORDON, State Auditor.
    Division Two,
    January 6, 1914.
    1. COSTS: Continuance: Criminal Case: Taxed Against Party Asking Continuánce. Where in a criminal case a continuance was granted at the October term, 1909, upon application by the State, all costs incurred at that term being adjudged against the State, and at the October term, 1910, the defendant pleaded guilty and was sentenced to the penitentiary, the costs taxed against the State at the 1909 term must be paid by it, in accordance with Sec. 5203, R. S. 1909, which provides that when a continuance in a criminal case is allowed on the application of either party, “it shall be at the costs of the party at whose instance it is granted, unless the court otherwise direct.” Secs. 5376 and 5377, R. S. 1909, are announcements more in the nature of a general rule for the taxation of costs when the defendant is convicted and do not undertake to retax costs that have been previously adjudged.
    2. SHERIFFS: Fees: Constitutional Law. A sheriff whose term began before the enactment of the statute giving to sheriffs fees for mileage in subpoenaing witnesses in criminal cases (Laws 1909, p. 505) is not entitled to those fees, for, if allowed, they would amount to an increase of his fees during his term of office, in violation of the Constitution
    Mandamus.
    Writ issue».

      Ben E. Hulse for relators.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent. '
   WILLIAMS, C.

This is an original proceeding by mandamus to compel the State Auditor to audit and allow a certain fee bill for costs, now due the relators, and incurred in the circuit court of Rails county, Missouri, at the October term, 1909~, -thereof, in the case of State of Missouri v. Ben Selleek. The questions to be determined are purely legal in their nature, the facts involved being admitted by both parties. The facts, necessary to an understanding of the legal questions involved, are as follows: On the 15th day of March, 1909, the prosecuting attorney of Rails county, Missouri, filed in the circuit court of said county an information in the case `ot State of Missouri, as plaintiff, against Ben Seileck, as defendant, charging the defendant with the crime of seduction under a promise of marriage. Said cause was set for trial at the October term, 1909, of said circuit court. At said term, said cause was, upon the application of the State of Missouri and by order and judgment of said circuit court, continued; and all the costs incurred in said cause at said term were, by order and judgment of said circuit court, adjudged and assessed against the State of Missouri. At the October term, 1910, of the said circuit court, the defendant entered a plea of guilty and was, by the said circuit court, sentenced to three years' imprisonment in the penitentiary. Defendant paid all the costs in said cause except the costs incurred at the October term, 1909~ Later a fee bill was made out covering the costs which were incurred at the October term, 1909. Said fee bill contained items of costs due the clerk amounting to eleven dollars, and fees due the sheriff in the total amount of $55.75. Two of the items as to the Sheriff’s fees which are questioned, were as follows: “To 220 miles traveled both ways in summoning witnesses for State at 5 cents per mile, — $11. To 245 miles traveled both ways in summoning witnesses for defendant, at 5 cents per mile, — $12.25.”' Then follows the itemized list of sixty-three witnesses showing the fees and mileage due each witness. Thirty-six of said witnesses have for value received assigned their said fees to said Ben Selleck, and the remaining witnesses, the sheriff and clerk are joined with said Selleck as relators herein. The total amount of the fee bill is $315.25. This fee bill was duly examined by the circuit judge and the prosecuting attorney and properly certified by them to the State Auditor for payment. The State Auditor refused to audit and allow the cost bill, assigning the following reasons for such refusal: (1) The defendant having been convicted at the October term, 191'Q, the State by virtue of section 5376, Revised Statutes 1909, was not liable for the costs assessed against it at the time the continuance was granted; (2) that the items allowing the sheriff fees for mileage were illegal because the statute allowing the sheriff mileage in subpoenaing witnesses in criminal cases was first enacted during the term of office of said sheriff.

OPINION.

I. It is contended by respondent that since the defendant was, at a later term, convicted, the State is not liable for the costs which were adjudged against it by the circuit court, upon the granting of its application for a continuance of the cause at the October term, 1909.

Section 5203, Revised Statutes 1909, is as follows: “Continuances may be granted to either party in criminal cases for good cause shown, and the court may postpone the trial of any such case for good and sufficient reasons, of its own motion. When a continuance is allowed on the application of either party, it shall be at the costs of the party at whose instance it is granted, unless the court otherwise direct.”

Section 5376, Revised Statutes. 1909, is as follows: “Whenever any person shall be convicted of any crime or misdemeanor he shall be adjudged to pay the costs, and no costs incurred on his part, except fees for board, shall be paid by the State or county.”

Section 5377, Revised Statutes 1909, provides: “And in all cases- in which the defendant shall be sentenced to imprisonment in the penitentiary,” etc., “the State shall pay the costs, if the defendant shall be unable to pay them, except costs incurred on behalf of defendant. . . .”

In discussing the question we shall make no distinction between the costs incurred upon the part of the State and those incurred upon the part of the defendant, for the reason that it is not claimed that defendant is unable to pay the costs, but the decision of the question here involved will turn upon the construction to be given the foregoing statutes and more particularly on the construction to be given section 5203-, supra. It will be noticed that said section deals with a special subject, to-wit: The taxation of costs when the cause is continued upon the application of either party, and in that sense provides an exception or special rule concerning the costs therein mentioned. The other sections are announcements more in the nature of a general rule for the taxation of costs when the defendant is convicted and do not undertake to retax costs that have been previously adjudged.

A somewhat opposite but very analogous situation to the one here involved was discussed in the case of State of Missouri v. William A. Brigham, 6-3 Mo. 258. In that case the defendant stood indicted for embezzlement and at one term of court, upon bis application, tbe cause was continued at bis costs and judgment rendered against bim tberefor, by virtue of tbe then existing statute that “Continuances', may be granted to either party in criminal cases for like causes and under like circumstances as in civil cases.” At a subsequent term, defendant was tried and acquitted. Defendant then moved to set aside tbe judgment rendered against bim for costs, at tbe prior term, basing bis contention upon tbe provision of Wagner's Statutes 1870, p. 349, sec. 4, wbicb provided that “in all capital cases and those in which imprisonment in tbe penitentiary is tbe sole punishment for tbe offense, if tbe defendant is acquitted, the- costs shall be paid by tbe State.” (Tbe same provision is now contained in section 5379, Revised Statutes 1909.) In refusing to allow defendant’s contention the court, speaking through Wagner, J., said:

“But this section only has reference to tbe costs that accrued at tbe trial which bad not previously been specially adjudged against either party. If at a previous term there bad been a judgment against tbe defendant for costs, they would not be comprehended within tbe intendment of tbe section. If there was any doubt about tbe legislative will in this regard, we think it is made perfectly plain by referring to the statute regulating criminal practice, which declares, that, ‘verdicts may be set aside and new trials awarded on tbe application of tbe defendant and continuances may be granted to either party, in criminal cases, for like causes and under like circumstances, as in civil cases. [Wagn. Stat. 1872, p. 1104, sec. 18.] This we think is decisive of tbe case and renders tbe question too plain to admit of or require argument.” [Id., l. c. 258-9.]

Applying tbe same logic in construing sections 5376 and 5377, supra, it follows that those sections have reference to costs “wbicb bad not previously been specially adjudged against either party,” and that therefore, under section 5203, supra, the State in the instant case is properly chargeable with all lawful items of costs adjudged against it at the October term, 1909, of said circuit court.

II. The only items of costs contained in said fee bill which are attacked on the ground that they are illegal and not properly taxable as. items of cost ™ the caus© are the two items of $11 and $12.25, claimed by sheriff Roland as fees for mileage in subpoenaing witnesses. Sheriff Roland’s four-year term of office began about January 1, 1909. The statute authorizing sheriffs to' receive fees for mileage in subpoenaing witnesses in criminal cases was first enacted in 1909' and after Sheriff Roland had begun his term of office. [Laws 1909, p. 505.] The sheriff was therefore not entitled to these fees for the reason that, if allowed, they would amount to an increase of his fees during his term of office. [Constitution of Missouri, art. 14, sec. 8.]

It is therefore ordered that a peremptory writ of mandamus issue commanding the 'State Auditor to audit and allow all items of said fee bill except the two items for the sheriff’s mileage.

Roy, C., concurs.

PER CURIAM.

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

All the judges concur.


author: ROY, C. PER CURIAM.

text:
    JAMES N. CROUCH v. FRANK C. THOMPSON, Administrator of JUDSON M. THOMPSON, Deceased, Appellant.
    Division Two,
    January 6, 1914.
    1. CONTRACTS: Mutual Mistake. A mutual mistake in a written instrument presupposes a prior or preceding agreement between the parties. To show the mutual mistake in the instrument the preceding agreement must ex necessitate be shown.
    2. -: -: Evidence- The party alleging a mutual mistake in a written contract must show exactly in what it consists, and the correction that should be made. The evidence must be such as to leave no reasonable doubt in the mind of the court as to either of these points. The mistake must be mutual and common to both parties. It must appear that both have done what neither intended.
    3. -: -:--: Reformation: Option. Plaintiff offered to buy deceased’s leasehold or take an option on it. Deceased’s agent said he did not think deceased would give an option; that deceased would sell for $140,000 cash, net. Plaintiff then wrote up a contract by which he agreed to buy the leasehold, for $140,000, the sale expressed to be conditioned upon the plaintiff’s acquiring the fee with the leasehold, and it being further understood and agreed, according to the words of the contract, “that unless the title is acquired to both fee and leasehold simultaneously then this sale is void.” Deceased did not own the fee. Plaintiff and deceased signed the contract without further negotiation. Held, in view of the lack of any evidence of such -precedent agreement, that the contract cannot be reformed, on the ground of mutual mistake, so as to give the plaintiff an option to take or to refuse the leasehold regardless of whether he procured the fee.
    Appeal from St. Louis City Circuit Court . — Eon. ' James E. Withrow, Judge.
    Reversed and remanded (with directions),

      Arthur Digby and E. W. Banister for appellant.
    (1) Before a court of equity will reform a written instrument on the ground of. mistake the evidence must he clear and convincing that there was a mistake made and that the mistake was mutual, blunter v. Patterson,. 142 Mo. 310; Judson v. Mullinax, 145 Mo. 630; Brokammer v. Hoss, 17 Mo. App. 1; Henderson v. Beasley, 137 Mo. 199 ; Sweet v. Owens, 109 Mo. 1; Meridith v. Holmes, 105 Mo. App: 343; Panning v. Doan, 139 Mo. 392 “Brown v. Gwin, 197 Mo. 499; Bartlett v. Brown, 121 Mo. 353. (2) A mutual mistake in a written instrument presupposes, a prior or preceding agreement between the parties. Dougherty v. Dougherty, 204 Mo. 237. (3) A mistake that would justify a court of equity in reforming a contract must be a mutual mistake of fact and the .party who seeks this equitable relief must show that he is without negligence in the matter. Miller v. Railroad, 162 Mo. 424; Thompson v. Railroad, 142 Mo. App. 234.

      Buder <& Buder and Spencer & Donnell for respondent.
    (1) The court reformed the written contract to make it read in accord with the undisputed understanding and agreement of both parties and in so doing acted well within its rights and pursuant to its duties. “When by mistake a contract is not expressed in such terms as to have the force and effect the parties intended, it is the duty of the court to correct the mistake.” Leitensdorfer v.' Delphy, 15 Mo. 161; Hook v. Craighead, 32 Mo. 405; Cassidy v. Metcalf, 66 Mo. 529: It is not necessary in order to establish a mistake in an instrument to show that particular words, were agreed to be inserted. It is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed and. that the instrument as executed is insufficient to show their intention. Leitensdorfer v. Delphy, 15 Mo. 161; Williamson v. Brown, 105 Mo. 333; Words & Phrases, “Mutual Mistake.” (2) “Although it is said that the evidence required to prove a mistake must be as satisfactory as if the mistake were omitted, yet this and similar remarks of judges however distinguished form no rule of law to direct courts in dispensing justice. When the mind of a judge is entirely convinced upon any disputed question of fact or law, he is bound to act upon that conviction.” Leitensdorfer v. Delphy, 15 Mo. 160; Williamson v. Brown, 195 Mo. 333; Fanning v. Doan, 139 Mo. 410. (3) All the more vigorously will a court of equity reform a written contract which by mutual mistake does not evidence the agreement of the parties when, as in this case, one of the parties fraudulently endeavors to take advantage of the mutual mistake.
   ROY, C.

Action to reform contract so as to correct a mistake, and to recover damages for breach of the contract as reformed. Plaintiff had a decree of reformation and judgment for damages for breach of the contract assessed at $10,500. Defendant appeals.

The petition alleges that plaintiff and Judson M. Thompson, defendant’s intestate, entered into a contract in writing as follows:

“St. Louis,' Mo., July 3, 1907.
“Received of J. N. Crouch the sum of five hundred dollars, being earnest money and part purchase price for the following described property to-wit: An unexpired leasehold on lot of ground situated in the city of St. Louis, State of Missouri, being the leasehold, together with the building and all improvements thereon, made by the Mission Free School to the undersigned for a term of ninety-nine years, from April 1, 1880. Said property fronting 59/ 4" (fifty-nine feet four inches) on the west line of Eighth street, by a depth of 127' 6" (one hundred and twenty-seven feet six inches) westwardly to an alley, in city block 194, and known as Nos. 411-13 and 415 North Eighth street, bounded on the east by Eighth street, north by property now or formerly of Patrick Yore estate, west by an alley, and south by property known as Victoria Building. Said leasehold to be conveyed for the sum of $140,000 net cash, to said J. N. Crouch, his representatives, successors or assigns. Terms of sale to be cash, less said earnest money paid this day. Rents to go to seller until the day of closing sale. Taxes for 1907, one-half to be paid by seller and one-half for 1907, and all taxes thereafter to be paid by purchaser. To be conveyed by perfect title, free and clear of all ■encumbrances, except taxes as above specified, by a special warranty deed and by proper assignment of lease. Sale to be closed on or before August 1, 1907. This sale is made conditioned upon the said J. N. Crouch, his successors, representatives or assigns, acquiring simultaneously, with this leasehold, also the fee to the land thereunder, and by a perfect title thereto, and it is understood and agreed that unless the title is acquired to both fee and leasehold simultaneously then this sale is void, and the earnest money this day paid shall be returned to said J. N. Crouch.
“Executed in duplicate on the day and year first above written.
“J. M. Thompson,
“By J. E. Kaime and Bro. R. E. Co., Agents.
“J. N. Crouch.
“Approved: J. M. Thompson.”

It also alleged the following:

“That at the time said contract was reduced to writing, as hereinabove set out, it was. agreed by and between plaintiff and said Judson M. Thompson, that plaintiff should not be required to completé .the sale unless plaintiff should be able to secure before August 1, 1907, the fee to the property, the leasehold of which he was purchasing, as hereinabove set out, and that if the plaintiff was thus unable to secure said fee, that plaintiff should have returned to him the earnest money of five hundred dollars, paid under the contract, and should be entitled, if he so desired, to proceed no further with the contract, and that it was at the time determined and agreed by and between plaintiff and said Judson M. Thompson, that said agreement was for the sole and exclusive benefit of plaintiff, and could be by plaintiff waived or not, as he elected, and that the written contract to be executed by plaintiff and said Judson M. Thompson should, in its terms, carry ■out this agreement.
“That subsequently the written contract, as hereinabove set out, was drawn up and signed by plaintiff and by said Judson M. Thompson, through his agents, the J. E. Kaime & Bro. R. E. Co., and that the said contract was approved and signed by said Judson M. Thompson, but that by mistake the said written contract did not correctly recite the provision in regard to the acquisition of the fee by plaintiff.
“That at the time of the signing of said contract it was expressly agreed by said Judson M. Thompson that he was not interested in said fee, and that the clause in said contract in relation thereto was a matter solely for the interest of plaintiff, to be waived or not by him at his pleasure.
“Plaintiff further states that the provision in said contract concerning the acquisition of the fee by him was waived by him and that said Judson M. Thompson was released before August 1, 1907, from the provision concerning the acquisition of the fee by plaintiff, and that plaintiff demanded of said Judson M. Thompson the leasehold which said Judson M. Thompson had agreed to sell, as hereinabove set out.
‘ ‘ That plaintiff has not acquired the said fee and is not now and was not the owner thereof on August 1, 1907, or at any other time, biit that with a view to prevent plaintiff from acquiring the leasehold which by said contract he was entitled to acquire, said Judson M. Thompson, subsequent to the date of said written contract, and in violation of the agreement entered into between Mm and plaintiff, and in fraud of plaintiff, entered into negotiations -with one Simon Van Raalte for the purpose of selling to said Simon Van Raalte before August 1, 1907, the leasehold which plaintiff was by said contract entitled to acquire, and conspired with said Simon Van Raalte and others to purchase the said fee to the property hereinabove described for the purpose of preventing plaintiff from acquiring the said leasehold interest therein, and that said Judson M. Thompson sold to said Simon Van Raalte the leasehold which by his said contract he had agreed to sell to plaintiff, and sold the same to said Simon Van Raalte long before August 1, 1907, and that on August 1,1907, said Judson M. Thompson had parted with the leasehold interest which he had contracted to sell to plaintiff, as in the contract herein-above set out, and had placed himself in a position where, it was impossible for him, the said Judson M. Thompson, to comply with his contract of July 3, 1907.”

The petition then alleges that Judson M. Thompson retained said sum of $500, refusing to repay it and to deliver the leasehold to the plaintiff, alleging plaintiff’s damages at $20,500. The answer was a general denial.

The J. E. Kaime & Bro. Real Estate Company was the agent for Thompson in making the sale. Mr. David F. Kaime of that company testified:

“Q. The last contract dated July 3, between Mr. Thompson, by J. E. Kaime & Brother Real Estate Co., Agents, and Mr. Crouch — by whom was that drawn? A. That was drawn by Mr. Crouch, if I remember right.
“Q. Now, at the time what was your conversation with Mr. Crouch preceding and leading up to the contract as to Mr. Crouch’s buying tMs leasehold, and acquiring simultaneously the fee to the same property? (Defendant’s counsel objects to the question; objection overruled; defendant at the time duly excepts.) A. Mr. Crouch wanted me to buy the leasehold and buy the fee; he told me he had an option on the fee, and he wanted to get an option or buy the leasehold, make a straight bargain for it. I told him I did not think that Mr. Thompson would give any option. Mr. Thompson agreed to sell for $140',000, cash, net, would not pay me any commission or anybody else, he would take $140,000 net.
“Q." What was said by Mr. Thompson with reference to the clause put in there' by Mr. Crouch concerning the purchase of the fee? A. He said he cared nothing about the fee, he had no interest in it,, he cared nothing about it, he didn’t care whether he purchased it or not; that was his expression.
“By the Court: Mr. Thompson did not care whether Mr. Crouch purchased it? A. Yes, sir, he had no interest in it, he was abrupt on that question, shut me off when I talked with him about it.
“By Mr. Buder: Q. Did he himself require the clause to be inserted in the contract? A. About the fee?
“Q. Yes. A. No, sir.
“ Q. At whose instance was. it put in there? .
“Mr. Buder: The witness said Mr. Crouch drew the contract. A. Mr. Crouch drew the contract.
“Mr. Buder: If he drew the contract he put it in.
“The Court: The evidence of the witness so far tends to show that Mr. Crouch prepared the contract and inserted the clause himself.
“Mr. Buder: That is correct.
“The Court: Now he claims the clause was not what he intended to express.
“By Mr. Buder: Q. At whose instance was it put in there? (Defendant’s counsel objects.)
“Q. What was said by Mr. Crouch in reference to wanting the clause in the contract?
“Mr. Digby: Was Mr. Thompson present? I object to it unless he shows that Mr. Thompson was present at the time.
‘ ‘ The Court: The witness testifies and one memorandum they offer tends to show that the J. E. Kaime & Brother Real Estate Co. was the agent for Mr. Thompson in that deal and if that company was the agent for Mr. Thompson in negotiating the deal leading up to the final 'contract, it seems, to me what was said by Mr. Kaime would be competent. There are one or two memoranda tending to show that Mr. Kaime represented Mr. Thompson.
“Mr. Digby: Not to sell at $140,000.
“Mr. Buder: He approved of the agency.
“The Court: The only memorandum so far is the letter of June 11, addressed to Messers. J. E. Kaime & Brother Real Estate Co., ‘I hereby authorize you to sell,’ that is the letter of $155,000, and afterwards there is a letter of Mr. Kaime, approved by J. M. Thompson. There cannot be much question that the evidence tends to show that the Kaime & Brother Real Estate Co. were the agents of Mr. Thompson in the transaction. I do not see any escape from that.
“By Mr. Buder: What was said by Mr. Crouch in reference to wanting the clause in the contract. (Defendant’s counsel objects to the question unless it is shown that Mr.' Thompson was present. Objection overruled. Defendant at the time duly excepts.) A. Mr. Crouch said he wanted it in there to protect himself so that in case he didn’t get the fee simple title to the property he would not be obligated to take the leasehold, that was his explanation.
“Q. Did you convey that statement of Mr. Crouch to Mr. Thompson? A. Mr. Thompson read it over and spoke about the statement in there, and that was the time he told me he cared nothing about the leasehold. •
“Q. Ton told him then what Mr. Crouch had stated to you he wanted.it in there for? A. I told him . that Mr. Crouch’s reason that he wanted to protect himself, that he wouldn’t have to take the leasehold if he did not get the fee simple.”

Mr. Benjamin F. Gray, of the J. E. Kaime & Bro. ,R. E. Co. testified for the plaintiff as follows:

“Q. Have you any knowledge in reference to the clause that was put in by Mr. Crouch in the contract of sale drawn by Mr. Crouch, just referred to, dated July 3, not requiring Mr. Crouch to take the property unless he acquired the fee? A. Yes, sir.
. “Q. What was that conversation you had with Mr. Thompson? A. Well, at the time the contract was made it was stated to Mr. Thompson that this clause was to be put in there so if he did not acquire the fee he would not be compelled to take the leasehold.
“Q. Did he say anything else with reference to that clause as to his interest in it? A. He said he didn’t own the fee, had nothing to do with it, didn’t ■ care about it at all.”

Plaintiff’s evidence showed that the day before the expiration of the time for closing the contract, plaintiff offered to pay Thompson the balance of the purchase money and demanded the deed and the closing of the deal; and that Thompson refused, saying that he had sold the leasehold, and that he had been told the Crouch contract was not valid.

The evidence introduced by plaintiff tended to show that the leasehold was worth $155,000 or $160,-000. The evidence for defendant tended to show that it was worth only about $100,000. Thompson sold the leasehold to N. Rosenthal, who purchased it in behalf of Simon Van Raalte, who had been negotiating with plaintiff for it. The price paid was $140,000: The contract with Rosenthal had the following: “It is understood and agreed that there is now outstanding a written, option contract, a copy of which is hereto attached, marked ‘Exhibit A,’ from me to J. N. Cronch, giving to said Crouch the right, upon the terms and subject to the limitations contained in said contract, to purchase and acquire said unexpired leasehold estate from me, and that this agreement is made subject to the strict terms, of said agreement so given to said Crouch, and if said Crouch shall exercise said option strictly in accordance with its terms, this agreement shall become and be null and void, and I will thereupon, at once, repay to said N. Rosenthal, or assigns, the earnest money hereby receipted for. The sale hereby provided for shall be closed in sixty days from the date hereof.”

The court in effect decreed a reformation of the contract as prayed for in the petition.

The decree is without evidence to support it. The only negotiation between the parties prior to the signing of the written contract was stated by Mr. Kaime as follows: “Mr. Crouch wanted me to buy the leasehold and buy the fee, he told me he had an option on the fee, and he wanted to get an option or buy the leasehold, make a straight bargain for it, I told him I did not think that Mr. .Thompson would give any option. Mr. Thompson agreed to sell for $140,000', cash, net, would not pay me any commission or anybody else, he would take $140,-000 net.”

That clearly shows that plaintiff wanted either an option or he wranted to make a straight bargain for the leasehold. It shows, that Kaime did not claim to have any power to bind Thompson to anything but a straight sale. That evidence, and it is all there is on the subject, not only fails to show an agreement, but it shows that plaintiff and Kaime both knew that Kaime had no power to make an agreement for an option.

Without further negotiation, Crouch wrote up the contract and signed it. Thompson signed it. The contract as signed was the only one that was ever negotiated or agreed upon. When we say that Kairne had no power to agree to an option, we mean that the plaintiff’s own evidence shows that he did no.t agree to one, and at the same time knew that he had no power to make such agreement.

The evidence shows that both Crouch and Thompson made some statements about the clause which was written in the contract and which is now in controversy. The plaintiff said he wanted it in there “to protect himself so that in case he didn’t get the fee simple title to the property he would not be obligated to take the leasehold.” The clause as originally written was good and sufficient to do just what the plaintiff said he wanted. He was thereby released from any obligation in case he failed to acquire a fee.

Thompson said he “did not own the fee, had nothing to do with it, didn’t care about it at all.” That showed, if anything, that he was perfectly satisfied with the contract as written, but had not the slightest tendency to show that he ever agreed to any other contract. There is not a word of evidence to show that it was the intention of either party that, in case of plaintiff’s failure to get the 'fee, he should be free, but Thompson should be bound. The plaintiff wrote the contract, and now, after the other party is dead, asks the court to change it so as to make it what neither party ever contemplated.

“The party alleging the mistake must show exactly in what it consists, and the correction that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these points. The mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended.” [Hearne v. Marine Ins. Co., 20 Wall. 488.] “A mutual mistake in a written instrument presupposes a prior or preceding agreement between the parties. To show the mutual mistake in the written instrument the preceding agreement must ex necessitate be shown.” [Dougherty v. Dougherty, 204 Mo. l. c. 237.]

The judgment is reversed and the cause is remanded with direction to dismiss the plaintiff’s bill.

Williams, G., concurs.

PER CURIAM.

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

All the judges concur.