author: GOODE, J.

text:
    KANSAS CITY and TRAVELERS INSURANCE COMPANY, Appellants, v. RICHARD H. FIELD.
    Division One,
    December 2, 1920.
    1. LIEN FOR TAKES: Enforcible in Equity. A lien for taxes is purely statutory, and its enforcement in equity is not only unusual, but was unknown to the original jurisdiction of equity. And while it may be conceded that, if a lien for taxes is given by statute and no statutory method to make it effective is provided, or if a method is provided but it proves inadequate, chancery can take jurisdiction to prevent the lien from failing, it cannot do so where a plain, adequate and complete statutory remedy for enforcing it is provided.

      2. -: -; The Eight Doctrine. The true doctrine is that if a statute gives a.lien for taxes and provides no particular mode of enforcing it, equity will supply a remedy; but if a statutory method of collecting the tax is provided, especially if it is adequate and complete, equity is without jurisdiction.
    3. -: -: Kansas City Charter: Limitations. The charter of Kansas City of 1898 provided for the impaneling of a jury to make assessment of benefits against property in the benefit district, for a judgment on the verdict and for an execution on the judgment to collect the confirmed assessments, and thereby provided an adequate remedy for the collection of the special taxes, and therefore a suit in equity to enforce the tax lien is not available; nor does the fact that execution was issued, and proved' ineffective because not issued for more than ten years after judgment was rendered, give to a court of equity jurisdiction to enforce a lien for the taxes.
    4. -: -: Lien Arising from Verdict. Under the Charter of Kansas City of 1898 a lien for the special taxes assessed by the jury for the creation of a public park did not arise from the verdict independently of the judgment, but execution on the judgment was available in case of default in paying the taxes, and therefore a lien for the taxes cannot be enforced by chancery.
    5. -: -: TJnmatured Installments: Failure of Lien. The argument for equitable relief for the unmatured installments of a benefit assessment is no stronger than it is for those in default when the execution was issued and failed because not issued within ten years after judgment. The execution being for the total amount of the installments, accrued and to accrue, and nothing being collected because the period for issuing execution had expired, equity cannot enforce a lien for the installments that have not matured when the suit is brought.
    6. -: -: -: -: Limitations: Special and General. The fact that some of the ‘installments of the benefit assessment had not matured at the time the suit in equity was brought to enforce a tax lien on the property, and that the city charter provided that the lien was to continue until the assessment was paid in full, does not affect the fact that equity is not available, where execution was issued and failed because not issued within ten years, execution on the judgment for all the installments being the charter method of collecting the tax. The assessment lien will not continue so as to be enforcible if the holder permits the judgment to remain unexecuted, with nothing paid on it, for ten years. The general limitation laws áre applicable to such judgment, notwithstanding the charter says that liens for assessments shall continue until they are paid.

      Appeal from Jackson Circuit Court.—Hon. William O. Thomas, Judge.
    Affirmed.

      E. M. Harber, Benjamin M. Powers, Delbert J. Haff and Charles W. German for appellants; Haff, Meservey, German and Michaels of counsel.
    (1) Under the Charter of Kansas City in force at the time of these proceedings (Sec. 20, Art. X, p. 180, Charter 1898), the lien of the assessments involved herein attached from the date of the taking effect of the ordinance and continued until paid or collected in full, both principal and interest. Charter 1898, p. 177, Art. X, sec. 16; p. 178, Art. X, sec. 17; p. 180, Art. X, secs. 20, 21; St. Louis v. Brinckwirth, 204 Mo. 280; Pleadwell v. Glass Co., 151 Mo. App. 51; City of Kansas v. Payne, 71 Mo. 159. (2) There being a lien, the court has jurisdiction to foreclose it in an appropriate action brought for that purpose. Lockett v. Robinson, 31 Fla. 134, 20 L. R. A. 67; Davis v. Alvord, 94 U. S. 545, 24 L. Ed. 283; Hooven, Owens & Rentschler Co. v. John Featherstone’s Sons, 111 Fed. 81; Armstrong-Cork Co. v. Merchants’ Refrigerating Co., 184 Fed. 199; Sheffield Furnace Co. v. Witherow, 149 U. S. 573, 37 L. Ed. 853; Gilchrist v. Railroad Co., 58 Fed. 708; Evans v. Silvey & Co., 42 So. 62; Enslen v. Wheeler, .13 So. 473; Kreliug v. Kreling, 50 Pac. 546; Provolt v. Railway Co., 69 Mo. 633; Duncan v. Mo. Pac. Ry., 22 Mo. App. 614; Wells County v. McHenry, 74 N. W. 241. (3) The lien of the assessment of benefits is unaffected by the decision of this court that execution cannot issue on the judgment of confirmation. Sec. 2125, R. S. 1909; Riley’s Adm. v. McCord’s Adm., 21 Mo. 285, 24 Mo. 265; Board of Trustees v. Fry and Woods, 192 Mo. 552; Boyd v. Ellis,' 107 Mo. 394; Fleckenstein v. Baxter, 114 Mo. 493; Sec. 2828, R. S. 1909; Sec. 2837, R. S. 1909; Keith. & Perry Coal Co. v. Bingham, 97 Mo. 196; Wolff v. Ward, 104 Mo. 127; Hannah v. Davies, 112 Mo. 599; Trust Co. v. McDonald, 146 Mo. 467; State ex rel. An Evans, 176 Mo. 310; Brim v. Fleming, 135 Mo. 597; Pratt v. Clark, 57 Mo. 189. (4) Statutes of limitation or repose do not effect the lien of the assessments involved. St. Louis v. Gleason, 15 Mo. App. 25, 93 Mo. 33; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259 ; Meier v: St, Louis, 180 Mo. 391; Morrow v. Kansas City, 186 Mo. 675; Barber Asphalt Paving Co. v. Meservey, 103 Mo. App. 186; Brunn An Kansas City, 216 Mo. 10i8; Stanton v. Thompson, 234 Mo. 7; State ex rel. v. See-horn, 246 Mo. 541; Barber Asphalt Paving Co. v. HayAvard, 248 Mo. 280; Kansas City v. Woerishoeffer, 249 Mo. 1; R. S. 1909, secs. 8738, 9270; Laws 1911, pp, 342, 345; Laws 1913, pp. 290, 489; Rabshul ,v. Lack, 35 Mo. 316; Gilsonite Construction Co. An Coal Co., 205 Mo. 49.

      John H. Lucas, Enward J. White and Cyrus Crane for respondent.
    (1) The city charter provided for enforcement of the assessment by execution on the judgment. Kansas City Charter, 1898, sec. 17, p. 178; sec. 21, p. 182 (2) There is no remedy provided in said city charter (or by statute) for the enforcement of the alleged assessment by suit, or othervidse than by execution on the judgment on the verdict. The charter having thus provided for the enforcement of the alleged assessment by execution, and not having provided any other remedy therefor, the alleged assessment cannot be enforced by this suit or by any suit at law or in equity thereon. Carondalet v. Picot, 38 Mo. 125; Alexander v. Hebler, 35 Mo. 341; State ex rel. v. Goodnow, 80 Mo. 271; Moberly Ar. White, 19 Mo. App. 269; Jamison a^. Harvey, 147 Mo. App. 145; Chandler v. Railroad, 251 Mo. 600; Commission Co. v. Spencer, 205 Mo. 119; Ridlick v. Governor, 1 Mo. 147. (a) This is only the rule of strictissimi juris which always applies to a statutory remedy on a statutory liability. Ridlick v. Governor, 1 Mo. 147; Construction Co. v. Spencer, 205 Mo. 119; Chandler v. Rairoad, 251 Mo. 600. (b) And this strict rule also negatives, the claim or suggestion of plaintiffs that the last clause of Section 21, Article X, of the charter, giving a right to enforce all of the installments of the assessment for default of any installment, makes each installment of the assessment a separate and successive cause of action as each comes due. This claim of plaintiffs is entirely unfounded and is contrary to the express provision of Sections 17 and 21, making all of the installments become as one entire assessment, and plaintiffs can have no say thereon, (c) No fact or matter is alleged in the petition to make this suit a case in equity. Garondelet v. Picot, 38 Mo. 125; Jamison v. Harvey, 147 Mo. App. 145; Marshall v. Wabash Ry. Co., 201 Mich. 167; Scott v. Brew. Co., 256 Pa. 158; Seibert v. Copp, 62 Mo. 186; Comm. Co. v. Spencer, 205 Mo. 119. (d) The ground, and the only ground, urged by plaintiffs to make this a suit in equity, is that they have lost the right to an execution by lapse of time. Loss of right to enforce the alleged assessment, by execution, under Sec. 3912, R. S. 1909 (and Kansas City v. Field, 270 Mo. 500), created no equitable right on which to maintain this suit. Baner v: Gray, 18 Mo. App. 173; 16 Cyc. 38, 39, 40; Wells Lbr. Co. v. Menominee Lbr. Co., 168 N. W. 1011; Scott v. Waynesburg B. Co., 256 Pa. 158. (f) And surely the plaintiffs’ unconscionable laches in not bringing this suit for the enforcement of said assessment and the penalty thereon of fifteen per cent per annum, until more than thirteen years after the alleged cause of action accrued on the entire assessment, cannot appeal strongly to a court of equity as a reason for allowing this suit to be maintained. “It is a universal rule, in equity never to enforce either a penalty or forfeiture.” 2 Story, Eq. Jur. secs. 1319, 1494, 1509; Watts v. Watts, 11 Mo. 547; Cooley v. Lovewell, 95 Árk. 567; Cooley v. Lovewell, 130 S. W. 574; Hendrix v. Black, 201 S. W. 283, Annotated L. R. A. 1918D, 217; United States v. White, 17 Fed. 565; Fletcher v. United States, 20 Fed. 345. (g) Appellants’ brief admits that an execution was issued for the collection of the alleged assessment before this suit was filed. To allow this suit for the alleged assessment to be maintained, would be to allow the plaintiffs to vex defendant again for the same alleged cause of action, contrary to the fine principles of equity and the maxim nemo bis vexari pro una et eadem causa. Rogers v._ Brown, 61 Mo. 187; Perry v. Craig, 3 Mo. 516; Kline v. Yogel, 90 Mo. 240; Lewis v. Schwenn, 93 Mo. 26, 31; Faris v. Moore, 256 Mo. 123. (3) The defense of res adjudicaba is that the judgment of the circuit court quashed the execution issued on the same judgment here sued on, on the ground that said judgment was null and void and conclusively presumed to be paid, under Sec. 1912, R. S. 1909, and the decisions of this court thereon. This point is unanswered and unanswerable by plaintiffs. In Kansas City Y. Field, 270 Mo. 500, this court held that the judgment on the alleged assessment was conclusively presumed to be paid, and ordered the circuit court to quash the execution issued on said judgment, because said execution was issued more than ten years after the date of the original rendition of said judgment, when said judgment had not been revived, and no payment had been made thereon. Section 1912, there construed, expressly includes “every judgment, order or decree of any court of record,” and expressly makes the same conclusive presumption of payment of the judgment, in any suit brought on the judgment after the prescribed lapse of time, as it- makes against the issue of execution, to-wit, that: “Such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.” Could this statute be made plainer? (a) But to avoid the presumption of payment raised by said Section 1912, plaintiffs claim that this suit is on the assessment made in the verdict of the .jury, and is not bn the judgment on the verdict. Plaintiffs made the same erroneous point and argument in the other cases to sustain the execution issued on the same judgment, but the point was properly ruled against the city because it ignored entirely the provisions in Section 17 of Article X of the charter. The verdict for the assessment is like any other verdict of a jury in fieri, not full born, only a tentative thing, without efficiency until the entire required judgment of the court is entered thereon. Oklahoma. City v. McMaster, 196 U. S. 533. Said Section 17 expressly provides for the “issue of execution on the judgment,” and the city charter nowhere provides for the issue of execution on the assessment in the verdict. The circuit court having awarded the city judgment in full compliance with said Section 17, the plaintiffs cannot have another judgment on the same assessment for the reason that said cause of action was wholly mergbd in the judgment rendered. Wycoff v. Hotel Co., 146 Mo. App. 554; Grains v. Miller, 111 U. S. 399; City of Harper v. Dailies, 211 Fed. 58; Spell-man v. Chaffee, 5 Colo. 243; Crittenden v. Leitensdorfer, 35 Mo. 243; Broom’s Legal Maxims (8 Ed.), p. 331; Schuler v. Israel, 120 H. S. 506; Winham v. Kline, 77 Mo. App. 46. (4) And the bar of this suit by the State’s Statutes of Limitations is not at all affected by the provision in Section 20 of the Charter Park Law, making and continuing the alleged assessment a lien upon the property until all of the assessment was paid. Seibert v. Copp, 62 Mo. 187; Nevada v. Mining Co., 14 Nev. 220; San Deigo v. Higgins, 115 Cal. 170-2; San Francisco v. Jones, 20 Fed. 188; Board of Commrs. v. Storey, 26 Mont. 517; Kansas City v. Field, 270 Mo. 500. Section 20 (Article X of said city charter), in providing that “said lien shall continue against each lot or parcel of land until the assessment against said lot or parcel has been paid or collected in full, both nrincinal and interest,” was probably intended to avoid a loss of the lien, which otherwise might occur under the three year Statute of Limitations of judgments. (Sec. 2125). Eysell vs St. Louis, 168 Mo. 607; Fidelity Dep. Co. v. Churchman, 189 Mo. 472; Crittenden v. Leitensdorfer, 35 Mo. 243; Ins. Co. v. Hill, 17 Mo. Appi 590.
   GOODE, J.

The pleadings in this case are a petition, filed February 23, 1918, and an answer, and both parties having moved for judgment on them, the defendant prevailed.

The defendant is the owner of two parcels of land, being the west fifty-two feet of the south sixteen feet of Lot Thirteen and the west fifty-two feet of Lot Fourteen in Coffman’s Addition to Kansas City. Those parcels lie in what is denominated in the petition the West Park District in Kansas City.

On April 3, 1899, the Board of Park Commissioners of said city adopted a resolution by which certain of the lands in the West Park District were designated to be constituted into a public park called “West Terrace,” as provided in Article X of the charter of Kansas City which was then in force. Pursuant to the recommendation of the Board of Park Commissioners, the Common Council of Kansas City, by an ordinance numbered 11430, approved April 5, 1899, provided for the condemnation for park purposes of the lands which the Board of Park Commissioners had designated to compose West Terrace Park, and provided further that the property so condemned should be paid for by special assessments upon real estate; that all private property in the West Park District should be deemed benefited by the improvements therein proposed, and should be assessed and charged to pay for the improvements; that the assessments should be made payable in twenty equal annual installments in accordance with the charter, with other provisions not necessary to state regarding the rate of interest the installments should bear, depending upon when they were paid. Those provisions of the said ordinance number 11430 were in accordance with the recommendations of the Board of Park Commissioners and with Sections 7 and 21 of Article X of the charter.

On June 3, 1899, the Board of Park Commissioners caused a certified copy of the ordinance to be filed in the office of the clerk of the Circuit Court of Jackson County, at Kansas City, and said court, by an order duly entered of record, appointed a day and place to impanel a jury to ascertain the compensation for the property to be taken or damaged for said improvements, and to make assessments to pay therefor.

Notice was given to all the owners of property in the West Park District, including the defendant Field, and subsequently a jury was impaneled and a trial had to ascertain the damages to be paid and benefits to be assessed on account of the improvements. The result of the trial was that a verdict was rendered in which benefit to the amount of $92.83 was assessed against the above described lots of the defendant, and the court thereupon adjudged that Kansas City recover in twenty equal annual installments the amount assessed against said property in the verdict. The first installment became due .May 31, 1901, and the successive installments on the 31st day of each succeeding May until all were paid, together with interest at designated rates according to the times when the installments were paid, unless they were all paid within sixty days from June 19, 1900, the date of the judgment, in which event they would draw no interest.

The court further adjudged that the several parcels of land assessed to pay for the improvements,' including defendant’s parcels should be charged with a lien for the installments and the interest which might accrue on them, and that the collection of the installments. might be enforced by a special execution against the lots assessed, upon the filing of a statement by the City Treasurer of Kansas City with the cleric of the Board of Parle Commissioners, showing what assessments remained unpaid and against what lots.

The petition further recites that several appeals were taken from the judgment to the Supreme Court, but were all dismissed by the Supreme Court on June 30, 1903, and the judgment of the circuit court affirmed,' and that, on the 13th day of July, 1903, the mandate of the Supreme Court, dismissing the said appeals and affirming the judgment was filed in the Circuit Court of Jackson County, Missouri.

The first installment of the assessment against defendant’s lots fell due May 31, 1904, but was not paid within three months thereafter, and according to the judgment of the circuit court all the unpaid installments and interest thereon at the rate of fifteen per cent per annum from May 31, 1904, became collectible. Neither were any of the other installments paid. By the charter of Kansas City the assessment for benefit accruing to the lots from the new park became a lien on the lots from April 5, 1899,'as the petition avers, with a further averment that the same, with interest, is still a lien.

No special execution was issued to enforce the collection of the installments within ten years after the' judgment was affirmed by this court on June 30, 1903. The petition says no such execution can now be issued and that the charter of Kansas City provides no special method of enforcing the lien. Wherefore it. is said that plaintiffs have no adequate remedy at law, or any remedy, except, this proceeding in equity to enforce the lien.

The interest of the Travelers Insurance Company, which is one of the plaintiffs in the case, is derived, according to the petition, from the following facts: On September 12, 1903, the City Treasurer of Kansas City issued park-fund certificates for the total amount of the assessments shown in the aforesaid verdict of the jury, as it was provided in the charter of the city might be done, and thereafter said certificates were sold to the Travelers Insurance Company, which is the owner and holder of them.

The prayer is for a judgment against the defendant for said sum of $92.83, together with interest at certain rates, that the said judgment he declared to he a lien on the aforesaid lots of defendant, and that they be sold to pay the judgment, and for other proper relief. Such, in substance, is the petition.

The answer denied the allegation that' the assessment against the said lots was a lien on them, or that they were bound for the payment of said assessment when the petition was filed.

As the basis of this defense the answer says this court on March 16,1917, in a proceeding in which all parties to this present suit were parties, determined that the alleged judgment sued on in the present case was null and void and was presumed to be paid and satisfied under Section 1912, Revised Statutes 1909; that this court ordered the Jackson County Circuit Court, to sustain the motion of the defendant to quash the execution which had been issued by said court on July 12, 1913, on said judgment, and that pursuant thereto said circuit court on April 16, 1917, made and entered its final order and judgment in said cause, sustaining the motion and quashing the execution.

Besides that defense, the answer avers the plaintiffs did not commence this suit or any civil action on the alleged assessment, or any installment thereof, within either five or ten years after the cause of action accrued ; that the judgment was not revived, or any execution, issued thereon, or any payment made thereon at any time within ten years after its rendition.

Furthermore that the defendant, for more than ten years after the commencement of this suit, had been in the actual, continuous, exclusive and adverse possession of the lots, claiming to own the same as against all persons, and as against the lien and claim of the alleged assessment and judgment sued on, and had paid all the taxes, state, county and municpial, on the lots during said period.

Further that if the plaintiffs, or either of them, ever had any cause of action in equity against the defendant, they had lost their right of action by laches, because of the fact that the cause of action,- if any there was, accrued more than thirteen years before this suit was commenced, and during said time the alleged judgment bore interest at the unconscionable rate of fifteen per cent per annum.

The court overruled the motion of plaintiffs for judgment on the pleadings, the substance of which we have stated, and sustained that of the defendant. The plaintiff took this appeal.

Parts of the Charter of Kansas City, of 1898, are relevant to the appeal and we epitomize them in this statement of the case.

Said charter provided that parks, etc., might be paid for by special assessments on the real estate situated in the park district and benefited by the improvements, and that the special assessments might be made payable at such time or times as the Common Council should provide by ordinance upon the recommendation of the Board of Park Commissioners; further that the Common Council should by ordinance describe the property to be purchased, taken or damaged in the course of improvement, and designate the time and mode of payment of the special assessments against benefited property, and that the proceedings for the taking and damaging of such private property for public use, and the assessment of benefits, should be heard and determined by the Circuit Court of Jackson County.

The court procedure was prescribed; among other things that the court should appoint a day and place to impanel a jury to ascertain the compensation for the property purchased, taken or damaged, and to make assessments to pay the compensation; also for notice to property owners to be affected.

The verdict was required to show the amount of benefit assessed against each piece of private property found benefited within the district. The jury could not be discharged until its verdict had been reviewed by the court and found to be correct in form and not to need the correction of errors.

The court within four days after the verdict was returned could set it aside for good catfse, and impanel a new jury to make another assessment. A further provision was that, unless set aside, the verdict was to “be confirmed and judgment entered thereon that the city have and hold the property sought to be taken upon payment of the compensation assessed therefor, for the purpose specified in the ordinance providing for said improvement, and that the city/- pay the benefits assessed against said city, that the city recover the respective amount assessed against the private property, and that the several lots and parcels of private property so assessed to pay compensation by the verdict, stand severally charged and be bound for the payment of the respective assessments and the interest that may accrue thereon; and if said assessments are, by the ordinance aforesaid, made payable in more than one installment, the judgment shall so recite. Such judgment shall be by the clerk docketed and indexed in the books used for that purpose. And if such assessment, or any portion thereof, against any tract or parcel assessed, or any portion thereof, be not paid and discharged when the same becomes due or collectible, and shall be in default as hereinafter provided, the collection of the same may be enforced by special execution or executions against the lot, tract or parcel of land charged with the lien thereof; and such execution or executions shall issue upon the filing of a statement of the City Treasurer with the clerk of the court, showing what assessments are unpaid and collectible, and against what lots or parcels of land and the amount or amounts due and collectible thereon.” Proceedings under the execution were to conform to the proceedings on ordinary judgments foreclosing liens on lands as far as practicable, and recitals the executions should contain were stated.

After the verdict of the jury had been returned into court and confirmed, the clerk of the court was required to deliver a copy of it to the City Treasurer and another copy to the City Auditor, and the assessments for benefits against private property contained in the verdict became liens from the date of the taking effect of the ordinance in pursuance with which the assessments were made, and those attached to the several lots or parcels of land assessed with benefits.

The charter declared the lien should ‘‘ continue against eaeh lot or parcel assessed until the assessment against such lot or parcel shall have been paid in full, both principal and interest.”

Regarding the distribution of the assessment over a period of years, the charter said this might be done by providing for payments in such number of annual installments as the Comon Council might determine; that the first installment be payable on the 31st day of May, following confirmation of the verdict by the circuit court, and the successive installments on the 31st day of each succeeding May, until all were paid; that installments might be paid without interest within sixty days after jiidgment or confirmation of the' verdict; that if not so paid they should bear interest at the rate of seven per cent per annum from the date of said judgment until maturity; that the owner of the property assessed should have the privilege of paying the assessment in full, or any installment of it at any time by paying all the interest to a date six months after date of payment, etc. Further that all installments and interest on them not paid at maturity should bear interest at the rate of fifteen per cent per annum until paid; that if any installment, or the interest on any installment, was not paid at maturity and remained in default for three months after maturity, then all the unpaid installments and interest should he collectible, together with interest thereon, at the rate of fifteen per cent per annum from the date of maturity of said interest in default; and special execution or executions might issue as aforesaid for the collection of all installments unpaid, and the costs of such collection. It was provided, however, that the owner or party interested might pay to the City Treasurer at any time before execution was issued against his land, the amount of the installment or installments in default, with interest thereon at the rate of fifteen per cent, in which case the installments not then due should not be affected by such default. [Those matters are to be found in the Charter of 1898, Sections 5 to 21, inclusive, Article X, pages 168 et seq.]

I. The purpose of this proceeding, which is in the nature of a suit in equity, was to enforce the lien of the assessment against defendant's lots for the park, on the theory that said lien still exists, and the question for decision is whether the equity jurisdiction'of the circuit court could be invoked for that purpose. The argument that it could be, runs in this way: That the charter of Kansas City provided the lien of the assessments should continue against the lots until the assessment against them had been paid or collected in full, both principal and interest (Charter 1898, p. 180, sec. 20); that this lien created by the verdict of the jury was independent of any lien that may have been incident to the judgment confirming the verdict; that the method prescribed in the charter for collecting the assessment by an execution issued upon the judgment, was not. an exclusive mode of collecting the assessment, for the reason that the execution thus authorized was only in aid of the judgment and to make it effective and neither related to the lien created by the assessment laid against the lots by the verdict of the jury, nor was intended for the enforcement of that lien; that no remedy was provided in the charter for the enforcement of the latter lien, and, therefore, inasmuch as courts of equity have a general jurisdiction, to enforce liens, particularly where there- is no adequate legal remedy, the equity jurisdiction could be invoked in the present case to enforce the lien of the assessment.

Without saying that no court has held equity has inherent jurisdiction to enforce against lands a lien for special or general taxes, when a mode of enforcement has been provided by statute, w;e say we have found no clear decision that it has, made in a case where the question was presented without circumstances that called for equitable relief according to the ordinary principles on which courts of chancery have cognizance of causes. Jurisdiction has been said occasionally to exist where a statute gave a lien without prescribing a remedy to enforce it, and this on the theory that the legislature intended the lien should be rendered effective by the procedure usually allowed to give effect to liens, whether the proper procedure be legal or equitable. [1 Cooley, .Taxation (3 Ed.), p. 17.]

We will take the pains to review the decisions on the question that we have found, as we deem the case important enough to deserve this labor.

The courts of Tennessee have gone further than those of the other states toward holding liens for either general taxes or special assessments, may be enforced in equity. This procedure is a sequel to an early decision in Tennessee that a tax was a debt owed by the taxpayer, and as no special procedure had been provided to collect the debt it might be collected as any other could be; or, if there was a lien for it, the lien, could be proceeded on as in the case of other liens. This doctrine runs back to Mayor v. McKee, 2 Yerger, 167, decided in 1826. That case was an action at law to recover the tax sued for as being a debt due to the town of Jonesboro.

Some of the suits in equity to collect taxes involved complications which made the legal remedy inadequate. [State v. Duncan, 3 Lea, 679; Webb v. Miller, 8 Heiskel, 448; Edgefield v. Brien, 3 Tenn. Ch. 673.] Others were supported by a statute making a lien for taxes “enforcible as other liens” by a suit in equity. [Nashville v. Cowan, 10 Lea, 209, 211; Chadwell v. Jones, 1 Tenn. Ch. 493.] If the Tennessee chancery courts give equitable relief in cases of liens for taxes concurrent with an adequate legal remedy, their rule is as much opposed to the one generally accepted as is the doctrine” that a tax is a debt. [1 Cooley, Taxation, p. 17, et seq.]

In Grant v. Bartholomew, 57 Neb. 673, 691, a suit in equity was upheld on an express statute which declared the owner of a certificate of purchase at a tax sale, should be the owner of all the liens for taxes which the public had. on the land described in the certificate, and might foreclose the certificate as a mortgage could be foreclosed. The opinion says it seems the. right of a county to maintain a suit in equity to foreclose a lien for taxes exists independently of statute; and in support of the dictum the cases next following are cited, with the remark that “these causes rest upon the principle that the grant of a lien in any given case, of necessity carries with it all the usual modes of enforcing it known to the law.” [McInerny v. Reed, 23 Iowa, 410; Mayor v. Colgate, 2 Kernan (N. Y.) 140; United States v. Pac. Ry. Co., 4 Dill. (U. S.) 66.] But the enforcement of tax liens in equity is not only unusual-; it was unknown to the original jurisdiction of equity, for such a lien is purely statutory. If courts of chancery possessed inherent jurisdiction in such matters, the mere creation of an adequate statutory remedy would not take away their jurisdiction. [Woodward v. Woodward, 148 Mo. 241.] And it may be conceded for the purpose of the argument that, if a lien for taxes is given by statute and no statutory method to make the lien effective is provided, or if a method is provided but it proves to be inadequate, possibly in a particular case because of its peculiar circumstances, chancery can take jurisdiction to prevent the lien from failing. In our judgment neither of those concessions is applicable to the present case for the reason that a plain, adequate and complete remedy to enforce the lien in question is provided by the charter of Kansas City, a proposition we will advert to later.

Referring to the eases last cited, we observe that in Mclnerny v. Reed, what was said on the point in hand was a dictum, for the court held the plaintiff, who was the assignee of a tax bill, could not maintain a suit in equity upon it, even though the city which issued the bill could have done so. The intimation that the city could maintain such a suit was based on the fact that there was no mode provided in the charter to collect the special tax, although the charter conferred on the city power to collect it. The argument was that the power should not be treated as nugatory because the charter failed to prescribe a method of exercising it, and therefore resort could be had to equity, as in other instances where a right existed without a remedy at law to maintain it.

In Mayor v. Colgate, a statute authorized the collection of the assessment in like manner as if the lots subject to it were mortgaged to the city.

In a series of Illinois cases suits in equity to establish tax liens were sustained, because a statute authorized the foreclosure of the liens. [Gauen v. Drainage Dist., 131 Ill. 446; People v. Henckler, 137 Ill. 580; People v. Weber, 164 Ill. 412; Hammond v. People, 169 Ill. 551.] The contention in those cases was over the question whether a special tax for improvements fell -within the effect of the statute, or whether the relief in equity was restricted to the collection of general taxes. The relief was held to be available for the collection of special assessments, but the court adhered to the doctrine previously declared in People v. Biggins, 96 Ill. 481, “that in the absence of a statute expressly conferring it, a court of chancery has no jurisdiction to entertain a bill for the foreclosure of a lien upon real estate given by the statute for taxes and assessments levied, thereon” (131 Ill. l. c. 462). That doctrine is the one prevailing generally with perhaps this limitation of it: if á statute gives a lien for taxes and provides no particular mode to enforce the lien, equity will then supply a remedy.

The courts are practically unanimous in’holding that if a statutory method of collection, is provided, especially if it is adequate and complete, equity is without jurisdiction.

Corbin v. Young, 24 Kan. 198, is a strong authority for that doctrine, as a statute of Kansas permitted the holder of a tax deed whose title was defeated in an action to recover the land, to enforce a lien in said action for the amount of the taxes for which the land had been sold. The case cited was not one to recover possession by the purchaser at a tax sale, but was brought by the purchaser after he had been defeated in his claim of title in a suit to quiet title. He prayed a decree for the taxes and the trial court granted the decree. This judgment was reversed on the ground that equity had no inherent jurisdiction to enforce a lien for taxes, and was therefore without jurisdiction to grant relief in the particular case, because the statute authorizing á decree for taxes in favor of one whose tax title failed, confined the power to give equitable relief to cases brought to recover possession of land and did not extend it to those brought to quiet the title. The court considered the question of the right of holder of a tax lien to foreclose it as he could a mortgage lien, a proposition asserted in the brief of the counsel in the case at bar, but it was denied by the Supreme Court of Kansas.

In Louisville Trust Co. v. Muhlenburg County, 23 S. W. (Ky.) 674, it appeared the taxes levied to pay bonds a county had issued for shares of stock subscribed by the county in a railroad company were made a lien on the real estate of the taxpayers. The method to collect the. tax prescribed in the act under which the subscription was made, proved ineffectual because of the county court’s refusal to appoint collectors, etc. Thereupon, the plaintiff, acting for itself and others, fixed a suit against the county and the tax payers to foreclose the lien. The court held this lien was similar to other tax liens and thát there was no intention on the part of the Legislature “to afford any additional or extraordinary remedy for its enforcement,” saving’ such liens could not be enforced in courts of equity.

In Greene County v. Murphy, 107 N. C. 36, the Supreme Court of North Carolina spoke dubiously regarding whether a lien for taxes could be made good in equity, even when a method provided by the Legislature to collect them had failed; but held that whatever might be the rule in such a contingency, the statutory remedy must be exhausted first.

In McHenry v. Kidder County, 8 N. D. 413, the action was one to quiet title and was filed by the receivers of the Northern Pacific Railroad Company. The lands, the title to which was involved, had been sold for taxes and bought in by the State for the use of Kidder County. By an act of the Legislature the State had relinquished its title and had relegated to the county the right to bring an action for the taxes for which the lands had been sold. Therefore in the suit to quiet title, the county prayed to have the taxes decreed a valid and perpetual lien upon the lands, in the nature of a mortgage and for foreclosure of the same. After deciding the lien asserted was not of the kind the statutes of North Dakota allowed to be considered in the suit, the court went on to say the same result would be reached in any form of action without reference to technical considerations; that the Legislature had provided a complete remedy for the collection of taxes and the remedy in the nature of a suit to foreclose a mortgage would be superfluous.; that the rule was well established which made a statutory remedy exclusive unless there was an express provision for supplementing it by an action, citing Cooley, Taxation, pp. 448, 449.

In Pierce County v. Merrill, 19 Wash. 175, the county and its treasurer sought to enjoin the removal from the State, of personal property on which the county had or claimed a lien for taxes, and for a receiver of the property and to have enough of it sold to pay the county’s demand. The lower court granted this relief; but the Supreme Court reversed the judgment, holding the statutes of the State gave a remedy by authorizing the treasurer of the county to seize and sell the property, and that equity had no jurisdiction to collect taxes or appoint a receiver for that purpose.

In Board of Education v. Old Dominion Co., 18 W. Va. 441, the suit was in equity for the collection of school taxes assessed against the lands of the defendant, the tax bills having been fraudulently withheld from the delinquent list by the officials whose duty it was to collect the taxes. After citing certain- cases wherein it was decided a tax was a debt for which an action of assumpsit would lie, notwithstanding the statute afforded another remedy, and declaring those decisions were against reason and the decided weight of authority, the court ruled that as the tax was made a lien on the lands by a statute which provided a special mode for selling the lands to satisfy the lien, no suit would lie in equity.

The doctrine of the Federal courts, frequently declared by them, is that both the assessment and collection of taxes are legislative affairs and no function of a court of equity. The- previous decisions of the Supreme Court of the United States on this question were reviewed in Thompson v. Allen County., 115 U. S. 550, wherein the remark most pertinent to the present case, and to the effect just stated, is found on page 558.

In several cases passed upon by said Supreme Court and brought to collect municipal taxes, or those levied by county courts to pay interest on county obligations, the usual modes of collecting had failed, either because officials had been remiss or because the municipality had passed out of existence. For such reasons the aid of equity was invoked, but it was ruled consistently that equity had no authority- either to levy a tax or to collect it if it had been levied by the proper public officers.

In cases where this court has dealt with the question, it has adhered to the principle that a statutory remedy for the collection of a tax or a special assessment, whether it be by distress or by action, is an exclusive remedy.

In Alexander v. Helber, 35 Mo. 334, a slave had been unlawfully seized by the marshal of the town of Farmington, for taxes due to the town by the owner of the slave. The owner, who was the plaintiff in the case, sued to recover damages for the seizure of his property, and his- action was sustained for the reason that the town had been empowered by the Legislature to collect personal taxes by a civil action in any court of competent jurisdiction, and therefore other modes of collecting were excluded and forbidden.

Directly in point is City of Carondelet v. Picot, 38 Mo. 125. Said city had instituted an action against Picot for special taxes assessed for sidewalks and other improvements. Pursuant to the charter the council had passed an ordinance providing an apportionment of the cost of the improvements against the abutting lots and declaring a lien against the property assessed. After repudiating the doctrine that a tax was a debt or in the nature of a debt, the court held it was an impost levied by government for the support of the State and was not founded on contract or agreement, but operated without the regard to the will of the citizen—in other words, in invitum; further held that unless the power to sue for taxes was delegated or expressed it did not exist and they could not be turned into judgments; that the .municipalities of the State had been given a remedy to collect assessments by a summary process, and as it was complete and ample, “it would be monstrous without plain and express authority to that effect, to say that- they could abandon at pleasure the usual and simple manner of maldng collections, and subject the delinquent taxpayer to all the harassments, vexations and costs of a legal proceeding.”

The doctrine stated by all the text-writers on the subject is in accord with that declared by this court in the cited cases. [1 Cooley, Taxation (3 Ed.), p. 17; 2 Cooley, Taxation, pp. 879, 881.] In that text it is said the remedy by suit exists only by force of a statute and the statute must therefore lie carefully followed. Another text says that where a statute has prescribed proceedings for the enforcement of taxes and the foreclosure of tax liens, the holder of such a lien cannot foreclose it as he would a mortgage in a court of equity, or otherwise than according to the statutory remedy. [21 Ency. Pl. & Pr. 388.] Still another treatise says the lien of a tax warrant unpaid has sometimes been held ground for a proceeding in equity, but as a general rule the powers of a court of chancery cannot be invoked in such matters -except on the ground of fraud, trust or some other well-recognized head of equity jurisdiction. [37 Cyc. 1242, and cases cited in Note 48.] In a work treating of special taxation, it is said a court of chancery cannot enforce the collection of that character of taxes unless authorized by statute to do so. [2 Page on Taxation by Assessment, sec. 1145, and cases cited in Note 2.]

While at first thought it may appear right for chancery to enfoi*ee tax liens, the notion vanishes when we remember that the subject is not within the original cognizance of equity, but pertains to the political branch of the government, and, therefore, according to all analogies, eánriot fall within the equity jurisdiction—at least unless the tax is made a lien and no sufficient remedy is provided to make the lien efficacious.

As we have said above, a remedy was provided in the Kansas City charter for the collection of assessments against the defendant’s lots, and an effective one. Whether the judgment entered upon the verdict of the jury, malting assessments for improvements, is a judgment in the full sense and with the ordinary incidents of one, we deem an immaterial question in the present case. Whatever may be the nature of the judgment and whether the lien inhered in the assessment itself as declared by the verdict, or in the judgment entered on the verdict, or in both, the lien was not enforcible until a judgment confirming the verdict had been rendered—was at most without vitality or value. But after judgment it became enforcible by an execution, not only for an installment in default, but for all installments thereafter to accrue, together with the interest on them. It is difficult to perceive why the charter should provide for a judgment and an execution on the judgment to collect the confirmed assessment if it was contemplated that, independently of the judgment, but not until it had been rendered, the assessment lien might be foreclosed by a'decree in equity. If this course was in the mind of the Legislature, why provide for collecting the judgment by an execution containing full recitals of the proceeding instead of remitting the matter to equity? However, regardless of that consideration, the essential fact is that an adequate remedy was given by the charter, and nothing was said about an additional remedy by suit in equity.

Pursuant to the provisions of the charter an execution was issued for the entire amount of the assessment, and the only reason why it failed to prove effective, was that the city did not ask for it for more than ten years after judgment had been rendered in the circuit court and for more than ten years after it had been affirmed in this court. Such being the date of the execution, and there having been nothing paid on the judgment during the ten years, it was held in Kansas City v. Field, 270 Mo. 500, that by virtue of our limitation statutes the judgment was presumed to have been paid and no execution could issue on it. [Secs. 1912 and 2133, R. S. 1909']. In that ease the question was gone into of whether those limitations were applicable to a proceeding to collect special taxes levied under the Charter of Kansas City. It was contended they were not because, among other reasons, the charter had been adopted by the people of the city pursuant to constitutional authority, as a scheme for the government of the municipality, and had superseded all laws of the State then in force appertaining to cities of one hundred thousand inhabitants and over. The provision of the charter that the lien of special assessments should continue against the property assessed until the charge had been paid or collected in full, was argued to lie outside the effect of the statutes limiting the life of judgments. This court held the charter of Kansas City could not supersede the Constitution or the general laws of the State, but must be in accord with them to be valid, and that the two statutes limiting the time wherein executions might be issued applied to executions on judgments of the kind in question. The exact point in decision was that the judgment was presumed to be paid after ten years and could not be enforced thereafter by an execution, the court having no occasion to decide whether there wás a lien arising from the verdict of the jury which was independent of the judgment, and enforcible in equity. All the arguments for the plaintiffs are based on the theory that such a lien exists, ánd for want of a statutory remedy to make it effective that they may .maintain this suit. Wo do not accept that proposition." The source of the lien, or when it began, or how long it continues, are minor considerations, and rather irrelevant to the question of the right to resort to this remedy, when another was given by the act which imposed the lien—another which embraced and enforced to the full extent the lien of all the installments, though they were distributed over twenty years, by making all that were unpaid, whether due or not, collectible if a default occurred in paying one and continued for three months. The failure of the remedy in the case, was not in consequence of any inadequacy in it, but was due to the plaintiffs omitting to use it within the period when according to the policy of the law, it- could be used.

II. It is insisted that as some of the installments had not yet matured when this suit was begun, by the very words of the charter the lien for them, at least, was still in force, because the lien was made to continue until the assessment was paid in full; that as the statutory remedy by execution has been exhausted and has proved fruitless, equity can be looked to for help in collecting those installments. The argument for equitable relief for the unmatured installments is no stronger than it is for those in default when the execution issued. It was taken out to collect the total amount of the installments, accrued and to accrue. Nothing was collected because the period prescribed for issuing executions had expired, and there was a presumption the judgment had been paid—a conclusive presumption, the statute says. [R. S. 1909, sec. 2125.] Plaintiffs contend said presumption is raised only against the judgment and an execution on it, not against the lien of the assessment. Authorities are cited in connection with this proposition wherein courts held that in a conflict between a statute providing for the continuance of a lien for taxes over a stated period and the general Statute of Limitations, the special .statute controls. [Skinner v. Christie, 29 Atl. 772; Lewis v. Rothchild, 28 Pac. 805; Wells County v. McHenry, 74 N. W. 243.] This was but an application of the general rule of construction that a statute relating to a special subject or remedy prevails, as regards that subject, over general laws, where the two differ in their provisions. [State v. Green, 87 Mo. 583.] But this court decided in the former case between these parties that the general limitation laws regarding judgments' and executions were applicable, notwithstanding the charter said liens for assessments should continue until the assessments were paid. In truth the charter and the limitation laws stand well together when construed so as to harmonize them, as they should he, if possible., [Strottman v. Railroad, 211 Mo. 227.] The Charter of Kansas City prevents an assessment lien, confirmed by a judgment, from expiring in three years, as the lien of an ordinary judgment does unless revived. [R. S. 1909, sec. 2125.] Usually the assessment lien will continue until the assessment is paid in full, but will not continue so as to be enforced if the holder permits the judgment to remain unexecuted and with nothing paid on it for ten years, any more than a judgment for a debt will be collectible by execution after ten years’ default, though in fact the debt remains unpaid.

The distinction is too refined that the statutory limitation, though good against the judgment and executions on it, leaves to the city the right to go into equity to assert the lien, which it might have made effective for the entire assessment by an execution had it availed itself of the remedy the charter gave. On .a final analysis this view leads to the doctrine that although there is an adequate statutory remedy to collect an assessment against land, nevertheless equity will afford an additional remedy—a doctrine rejected in this and in nearly all jurisdictions—perhaps in all.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WILLIAMSON, J.

license: Public Domain

text:
    THE STATE v. JAMES W. GARRETT, Appellant.
    Division Two,
    December 13, 1920.
    1. MOTION FOR NEW TRIAL: General Assignments. Vague generalities and mere assertions in the motion for a new trial in a criminal case raise no point for consideration in the appellate court.
    2. DEMURRER TO EVIDENCE. Where the verdict is not against the law, or the evidence, or the law and the evidence, or the weight of the evidence, nor lacking in substantial evidence to support it, nor the result of passion or prejudice on the part of the jury, a demurrer to the evidence is properly overruled.
    3. VOLUNTARY: Definition. It is not necessary to define the word “voluntary” in the instruction telling the jury that if they find from the evidence that any statements made by the accused were not voluntary they should disregard them; and if defendant desires that it be defined, it is his duty to ask the court by its instructions to define it.
    4. INSTRUCTION: No Request: Collateral Matters. It is the duty of the trial court, whether requested to do so or not, to instruct the jury in writing upon matters which are necessary for their information in arriving at their verdict; but it is not the court’s duty, when no request is made, to instruct on matters which In their nature are purely collateral or incidental, such as questions ' relating to good character, or to the testimony of accomplices, or to the definition of the word “voluntary” in the instruction telling the jury that any statements made by defendant which were not voluntary should be disregarded. ,
    5. -: Murder and Robbery: Possession of Money: Legitimate Inferences. An instruction telling the jury in a murder trial that the State has not shown that deceased had in her possession any money at the time of her death, or that any robbery was committed in connection with her death, or that any money was found in the possession of defendant, and directing them therefore to disregard all testimony offered by the State on the subject of the financial condition of the deceased and all testimony showing the possession of money by defendant subsequently to her death, is properly refused where it is contrary to the facts shown by the evidence, and to proper and legitimate inferences to be drawn therefrom.
    6. JURY: Excusing Part of Venire: No Objection. The objection that “the trial court ordered fifty men to be summoned as jurors and when that was done, without first calling the case and without consultation with defendant and without his consent, excused twenty-two of them and directed the sheriff to fill said panel immediately from the town in which court was being held, and accordingly the sheriff did summon twenty-two jurors from, said town,” made for the first time in the motion for a new trial, is not available for review in the Supreme Court; and especially should this be the ruling where the record does not show that the sheriff was directed to fill the panel from the town in which the court was being held, or that he did so, and it is no where alleged that the defendant was not aware of the facts pertaining to the matter at the time the jury was selected.

      7. -: -: -: Good Faith. Good faith forbids that a defendant in a criminal case should sit idly by and accept a jury made up in whole or in part of persons incompetent for any reason known to him, and take his chances upon the verdict of such a jury, and then, when the verdict is not to his liking, obtain a new trial upon the ground of such incompetency.
    8. -: Method of Challenge. Both at common law and by the adjudicated cases, a challenge to the array of jurors should be made in writing'.
    9. JUROR: Competency: Opinion Formed. Members of the panel who stated on their voir dire that they had formed an opinion as to the guilt or innocence of defendant, but that it was based upon rumor heard, or newspaper reports read, either about the time the homicide was committed or at the time of a former trial of the case, but that they could, nevertheless, give to defendant a fair and impartial trial, were not incompetent jurors.
    10. -: -: -: Hearing Evidence at Former Trial. A juror, otherwise competent, is not disqualified merely because he heard some fragments of the evidence at a former trial of the case against defendant.
    11. TRIAL JUDGE: Leaving Scene of Trial. The verity of the record cannot be impeached by the mere- affidavit of the defendant to the effect that, after the case had been submitted to the jury, the court, at about seven o’clock in the evening, took a recess until the following morning, and the trial judge, leaving the jury in charge of the sheriff, went to his home in a neighboring town, and later in the evening was recalled by telephone and received the verdict. But even if the judge left the scene of the trial and then returned, as in the affidavit stated, it cannot be seen how the rights of the defendant were prejudiced .in the slightest degree by the incident.
    12. EVIDENCE: Motive: Possession of Money. Evidence tending to show that the deceased commonly kept, or was commonly believed to keep, money about the premises in which she was murdered, and that such rumor was known to defendant, is competent upon the question of motive. Such evidence tends to support the State’s theory that robbery was the impelling motive for the homicide.
    18. -: Financial Condition of Defendant: Possession of Money Before and After Homicide. Evidence bearing upon the financial condition of defendant, both before and after the murder of a lone woman in her house, where the State’s theory is that robbery was the impelling motive, is admissible and competent. Evidence tending to show that deceased had money in her possession before she was murdered and none afterwards, that defendant was penniless before the crime was committed and afterwards was in funds, particularly if of the kind and character known to have been possessed by deceased, and that defendant had opportunity to commit both the robbery and murder, absent reasonable explanation, tends to identify the defendant as the murderer; and the length of time intervening between defendant’s state of poverty and his state of wealth would be a circumstance affecting the weight, but not the competency, of the evidence.
    Appeal from Saline Criminal Court.—Hon John A. Rich, Judge
    Affirmed.

      R. M. Reynolds and Roy D. Rucker for appellant.

      Frank W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent.
    (1) There was sufficient evidence of guilt to support the verdict. State v. Maurer, 255 Mo. 168; State v. Concelia, 250 Mo. 420; State v. Howard, 203 Mo. 603. (a) An unsupported allegation of passion and prejudice presents nothing for review. State v. Howell, 117 Mo. 342; State v. Gonce, 87 Mo. 630; State v. McBrien, 265 Mo. 594; State'v. Mace, 263 Mo. 157. (2) The court did not err is admitting evidence tending to show that the deceased was reputed to keep a large sum of money in her house and that défendent was cognizant of this reputation. State v. Rasco, 239 Mo. 564; State v. Shelton, 223 Mo. 132; State v. Donnelley, .130 Mo. 642; State v. Jackson, 95 Mo. 623; Kennedy v. People, 39 N. Y. 253; 21 Oyc. 919. (3) Evidence tending to show defendant’s financial condition about the time of the homicide was properly admitted. People v. Leung Ock, 74 Pac. 986; Lancaster v.. State, 31 S. W. 575; Clough v. State, 7 Neb. 320; 21 Oyc. 940; also cases cited. above. (4) Facts as to the conduct of defendant with regard to drinking whiskey on the way to the funeral of Sarah J. Campbell were admissible. State v. Daley, 210 Mo. 676; State v. Brown, 168 Mo. 449; 21 Cyc. 937, 939. (5) Yolnntary statements made by defendant after his arrest were property admitted in evidence. State v. Daley, 210 Mo. 676; State v. Norton, 121 Mo. 537; Baines v. State, 66 S. W. 847; 21 Cyc. 941. (6) The court did not err in refusing defendant’s demurrer to the evidence. State v. Conway, 241 Mo. 278; State v. Toohey, 203 Mo. 678; State v. Cushenberry, 157 Mo. 179. (7) Instruction D-2, requested by the defendant, was property refused. State v. Donnelly, 130 Mo. 642; State v. Jackson, 95 Mo. 623; Marabele v. State, 89 Ga, 425 ; 21 Cyc. 919. (8) The irregularity'of the court in excusing jurors on the regular panel and filling in the vacancies by a special summons is not saved for review by a mere allegation in a motion for a new trial. State v. Jones, 61 Mo. 232; State v. Grant, 152 Mo. 57; State v; Marshall, 36 Mo. 400. (9) It was not reversible error for the trial judg-e to leave the court room and the county seat while the jury was out in this case. Appellant’s affidavit discloses that at six o’clock, p. m., it appearing that the jury would be unable to reach a verdict that night, the court took a recess until the following morning. State v. Burns, 148 Mo. 174.
   WILLIAMSON, J.

The defendant, James W. Garrett, was convicted of murder in the first degree and his punishment was fixed at life-imprisonment in the penitentiary. He had duty appealed.

This is the second time that this case has been in this court.. The former appeal was from a like conviction and sentence. The opinion is reported in 276 Mo. 302, 207 S. W. 784. The former judgment was reversed because of an error in an instruction.

The facts in the present record are essentially the same as on the former trial, and for that reason we adopt the lucid statement of facts prepared by White, C., and set forth in State v. Garrett, supra, as applicable here, with the exceptions hereinafter noted.

There was evidence in behalf of the defendant upon the last trial that he frequently carried a large roll of money—amount not stated—and that he was seen with such a roll a short time before, as well as immediately after, Mrs. Campbell, the deceased, had been murdered. As upon the former hearing, so in the trial now in review, defendant did not testify in his own behalf, and, as before, certain relatives with whom defendant claimed he had been visiting at Moberly, Missouri, at such a time as made it impossible that he could have been at New Frankfort, the scene of the tragedy, when the murder was committed, also failed to testify. The defense was an alibi, and upon the last trial defendant produced one or two witnesses, in addition to the two who testified on the first trial, in support of that defense.

The court gave eight instructions in behalf of the State, and thirteen at the instance of the defendant, and refused two asked by the defendant.

Appellant is not represented by counsel in this court. We are therefore relegated to our own study of the record and to the motion for a new trial for information concerning any errors which may have occurred in the trial court.

The motion for a new trial is voluminous. In thirteen printed pages it sets forth twenty-eight distinct grounds, ranging from an allegation in the first ground that “the verdict is against the law,” to a final charge in the twenty-eighth assignment that “the defendant has not had a fair and impartial trial.” The whole course and conduct of the trial is assailed from the examination of the jurors upon their voir dire to the alleged action of the trial judge in leaving’ the courthouse after the cause had been submitted to the jury. We decline to take up these charges seriatim and discuss them separately. We have so often held that vague generalities and mere assertions in motions for a new trial are valueless and raise no point' for appellate consideration, that we do not think it necessary to reiterate the reasons npon which that conclusion is based. Those in need of information upon that point may consult State v. Scott, 214 Mo. 257; State v. Mann, 217 S. W. l. c. 69, and the authorities there cited.

We will, therefore, rule specifically upon such matters in this motion as, upon a careful reading of the record, approximating five hundred typewritten pages, may appear to us to be worthy of separate mention, and as to the remainder, content ourselves with the general statement that we find them devoid of merit.

I. The record discloses that, contrary to the grounds assigned in the motion for a new trial, the verdict is not against the law, nor against the evidence, nor against both the law and the evidence, nor against the weight of the evidence, nor lacking in substantial evidence to support it, nor is the verdict, so far as this record discloses, the result of passion or prejudice, and appellant’s demurrer to the evidence was, therefore, properly overruled.

II. The eight instructions given in behalf of the State, all of which are assailed in the motion for a new trial, are in time-honored form and follow oft-approved precedents. Of these instructions those numbered six, seven and eight are specifically questioned ^>Y appellant, but the criticisms urged against them are, we think, hyper-technical. Instruction numbered six is the usual instruction with reference to the weight and credibility of the evidence, and has been • approved time out of mind. [State v. Shelton, 223 Mo. 118.] Instruction numbered seven, relating to the presence or absence of motive, was expressly approved in the noted case of State v. Duestrow, 137 Mo. 44, and has been approved in many subsequent cases in substantially the form in which it was given in this case.

Instruction numbered eight is to the effect that if the jury found from the evidence that any statements made by the accused were not voluntary, then the jury should disregard such statements. The criticism is, in effect, that the word voluntary was not defined. No definition was necessary, but if appellant desired that such a definition should be given it was his duty to ask the court by its instructions to define that term. This he did not do, and he cannot now be heard to complain. While it is the duty of the court in criminal cases to instruct the jury, whether requested to do so or. not, it is not error for the court to fail to instruct upon matters which are in their nature purely collateral or incidental. The duty to instruct the jury in writing is a duty arising from a statutory command,' and the statute (Sec. 5231, R. S. 1909) only requires instructions to be given to the jury upon matters “which are necessary for their information in giving their verdict. ’ ’ Questions relating to good character (State v. McNamara, 100 Mo. l. c. 107), testimony of accomplices (State v. Weatherman, 202 Mo. 6) and similar matters are collateral in their character (State v. Lackey, 230 Mo. 707, l. c. 720), and so, we think, was the definition of the word “voluntary” in this instance. It follows that there was no error in the action of the trial court with respect to the eighth instruction, in this case. For the same reason there was no error in the failure to instruct with reference to the purpose of the admission of certain evidence.

III. Error is also asserted in refusing to give instruction marked D-2 in behalf of appellant. This instruction reads as follows:

“You are instructed that the State has not shown that the deceased had in her possession any money at the time of her death, nor that any robbery was committed in connection with her death, nor is there any proof that the money found upon the person of the defendant at the time of his aiTest had ever belonged to the deceased or been in her possession during her lifetime.
“You are therefore instructed and directed to disregard-all testimony offered by the State on the subject of the financial condition of the deceased and you are further instructed to disregard all testimony showing the' possession of any money by the defendant subsequent to the death of the deceased.”

This instruction was properly refused for the reason that it was directly contrary to the facts shown by the evidence, and to proper and legitimate inference to be drawn from the evidence. [State v. Donnelly, 130 Mo. 642, l. c. 651.] The instructions taken as a whole were full and complete and fairly stated the applicable law.

IV. As another ground for a new trial, appellant in his motion for a new trial asserts that the trial court ordered fifty men to be summoned as jurors, which was done, and that thereafter, “without first calling the case, the court without consultation with and without the consent of defendant, excused twenty-two of said jurors and directed the sheriff to fill said panel immediately and from the town of Marshall, and accordingly the sheriff did summon twenty-two more jurors from the town of Marshall.”

We think that this assignment must also be overruled. The record does not show that the sheriff was directed to fill the panel from the town of Marshall, nor that he did so. It is nowhere alleged that appellant was not aware of the facts as to this matter at the time the jury was selected, yet the appellant made no objection on this ground upon the examination of the jurors upon the voir dire and saved no exception upon this ground. The objection appears for the first time in the motion for a new trial and it is for that reason not available for review here. [State v. Ivy, 192 S. W. 737, l. c. 739; State v. Brown, 119 Mo. 527, l. c. 537.] Good faith forbids that the defendant in a. criminal case should sit idly by and accept a jury made up in whole or in part of persons incompetent for any reason known to him, and take ,his chances upon the verdict of such a jury, and then, when the result is not to his liking, obtain a new trial upon the ground of such incompetency. Furthermore a challenge to the array, both at common law and under our decisions should be made in. writing, and this was not done in'the case at bar (State v. Belknap, 221 S. W. 39, l. c. 44; State v. Church, 199 Mo. 605, l. c. 629; State v. Taylor, 134 Mo. 109. l. c. 143).

Appellant also insists that certain jurors who were on the panel were incompetent from having formed and expressed an opinion as to his guilt or innocence. The record shows that certain members of the panel stated that they had an opinion as to the guilt or innocence of appellant, but it further discloses that this opinion was in each instance based upon rumor and newspaper reports, either at about the time the homicide was committed, or at the time of former trials.of this cause. Certain of these jurors had also heard some fragments of the testimony at former hearings of this case. Each of the jurors further stated, however, that he could give the appellant a fair and impartial trial.

Under the statute (Sec. 5220, R. S. 1909), as well as numerous decisions, such an opinion, formed from mere rumor and newspaper reports, is not sufficient to disqualify a juror when it further appears that he can afford the defendant a fair and impartial trial notwithstanding such an opinion. [State v. Vickers, 209 Mo. 12, l. c. 27; State v. Sykes, 191 Mo. 62, l. c. 76; State v. Sherman, 264 Mo. 374, l. c. 380.] Nor is a juror, otherwise competent, disqualified merely because he may have heard portions of the evidence at previous hearings. [State v. Riddle, 170 Mo. 287, l. c. 294.]

V. Error is assigned in the action of the t :ial court in this, that after this cause had been submitted to the jury, the court took a recess until the following morning, and the judge, leaving the jury in the charge of the went to his home in Slater, Missouri. It appears from the affidavit of the appellant that the recess was taken at about sevén o’clock in the evening, and that during the same evening the judge was recalled by telephone and received the verdict of the jury. As to all of these matters, the record is silent. It is too plain for alignment that the verity of the record cannot be impeached by the mere affidavit of the accused, and for that reason we might well ignore this point. However, we cannot conceive how the rights of the appellant were prejudiced in the slightest degree by this incident, even if it occurred as claimed. This assignment also is devoid of merit.

VI. It is claimed that error was committed in admitting evidence tending to show that deceased was reported to be in the habit of keeping considerable sums money upon her person or about, her house and that defendant was cognizant of this reputation, and also as to the admission of appellant’s financial condition before and after the homicide.

The evidence tending to show that the deceased commonly kept, or was commonly believed to keep, money about the premises and that that rumor was knoAvn to appellant, was clearly competent upon the question of motive. [State v. Rasco, 239 Mo. 535, l. c. 564; State v. Shelton, 223 Mo. 118, l. c. 132.] It was the theory of the State that robbery Avas the impelling motive in this case, and the evidence tends to support that theory.

Upon the admissibility of evidence bearing upon the financial condition of appellant, both before and after the homicide, Ave have found no direct, adjudication in this State, but, on principle, it seems clear that this eAn.dence is competent. If it could be shown that ten minutes before a robbery was committed the accused was penniless and that within ten minutes thereafter, In'. Avas in funds, particularly of the kind and character knoAAm to have been possessed by the deceased, that fact, coupled with evidence showing an opportunity on the part of the accused to comit the crime in question, and that the deceased was found to have had money before the crime and none thereafter, would certainly have weight in the mind of any reasonable man, absent a reasonable explanation, as tending to identify the accused as the author of the crime. The length of time intervening between the state of poverty and the state of wealth on the part of the accused, would be a circumstance going to the weight, but not to the competency of the evidence. It has been so held in other jurisdictions. [State v. Carrington, 11 S. D. 178, l. c. 186; Garza v. State, 39 Tex. Crim. 358, l. c. 362.] We think this evidence was properly admitted.

On the whole we are convinced that the appellant was afforded a fair and impartial trial and that the evidence justified the verdict rendered against him. The judgment should be affirmed.

It is so ordered.

All concur.


author: MOZLEY, C.

text:
    THE STATE v. HAROLD J. HILLEBRAND, Appellant.
    Division Two,
    December 13, 1920.
    1. INSTRUCTION: Omission of Word Feloniously. The word “feloniously” is a word of classification of the offense charged, and its use in an information or indictment which attempts to charge murder in the first degree is necessary; but it is neither a definition nor a part of the crime, and need not be used in the instruction. So that an instruction which required the jury to find that defendant “wilfully, deliberately, premeditatedly and of his malice aforethought,” although it omits the word “feloniously,” sufficiently defines murder in the first degree.
    2. -: Alibi. The instruction on alibi is set out in full in the opinion, and is held to sufficiently declare the law on the subject.
    3. DEFENDANT AS WITNESS: Cross-Examination: Other Crimes: Impeachment. As affecting his credibility as a witness, defendant cannot be required to testify concerning a crime to which he has not pleaded guilty and of which he has not been convicted prior to his trial upon the pending charge.
    4. ■———: -: -: -: Coupled With Argument to Jury. About one month after deceased was held up and killed, defendant enlisted in the Army and was stationed at a camp in another State, and from there wrote the chief of police that, as he expected to leave there in two weeks, he wished to tell him that he was “one of the fellows who held up and shot” deceased, and a few „ days later made a written confession to the same effect to an officer. He was arrested and brought back, and denounced his confession as a lie, and testified that his reason for writing the letter and making the confession was that he expected to be sent within two weeks to France, that he was unable to obtain a furlough, and had adopted this method in order that he might be brought home and see his mother before he was taken abroad. On cross-examination the State’s attorney was permitted to ask him, over proper objections, why he did not, in his letter, accuse himself of a certain robbery he had committed, which was a crime he had at no time pleaded guilty to or been convicted of. In his argument to the jury the said attorney stated that if defendant “wanted to be brought back for doing a felony, there were lots of other acts that he could have mentioned that would have brought him back here, and why should he single out something that he says he did not do when there were things that you know and I know he did do that would have brought him back here?” Held, that the cross-examination, coupled with the attorney’s argument to the jury, was improper, in violation of the statute, and highly prejudicial.
    Appeal from St. Louis City Circuit Court.—Hon. Vital W. Garesche, Judge.
    Reversed and remanded.

      Thomas B. Harvey for appellant.
    (1) Prejudicial error was committed by the assistant circuit attorney in stating in Ms opening argument to the jury that “there was a lot of other acts that he could have mentioned that would have brought him back here just as quick as this one did,” “and why should he single out something as he claims he did not do when there was things that you know and I know that he did do that would have brought him back here;” and in his closing argument, appealing to the passion and prejudice - of the jury in charging that the defendant was wearing a fresh U. S. uniform of a soldier to arouse their sympathy; that- “he had disgraced one and. now he wanted to disgrace another,” and that he (the assistant circuit attorney) “don’t believe that he is in the Army now.” State v. Prendible, 165 Mo. 358; State v.' McDonough, 232 Mo. 230; State v. Rose, 178 Mo. 37; State v. Hess, 240 Mo. .160; State v. Edmundson, 218 S. W. 867. (2) The court erred in its rulings as follows: (a) In overruling the defendant’s objection to his cross-examination regarding, the alleged robbery by him of Peeler’s drug store long subsequent to and not connected with the alleged murder on trial, and in regard to which the defendant had not testified in his direct examination, (b) And in not censuring the assistant circuit attorney for repeatedly interrogating witnesses regarding an alleged shooting of a man named Bock, to which examination the court had sustained an objection. (c) In overruling objections bv the defendant to suggestions by the State’s counsel in his cross-examination of witnesses, that the defendant and his wife had been engaged in the “holdup” business, (d) And in overruling defendant’s objection to statement of the State’s counsel in his closing argument to the jury that he knew of “a lot of other acts” done by the defendant which would have brought him back from the army to St. Louis “just as quick” as did this murder charge. State v. Duff, 253 Mo. 422; State v. McBrien, 265 Mo. 61.2; State v. Helton, 255 Mo. 183; Sec. 5242, R, S. 1909; State v. Grant, 144 Mo. 56; State v. Kyle, 177 Mo. 659; State v. Hathorn, 166 Mo. 229. (3) If the court regarded the prejudicial inquiries of collateral and disconnected acts by the defendant as being competent for a certain purpose, the consideration of it by the jury should have been limited to that purpose by an appropriate instruction. State v. Jones, 249 Mo. 98; State v. Wellman, 253 Mo. 319; State v. Phillips, 233 Mo. 306; State v.^Weeden, 133 Mo. 84.

      Frank W. McAllister, Attorney-General, H. P. Ragland and C. P. LeMire, Assistant Attorneys-General, for respondent.
    (1) The argument of the assistant circuit attorney of which the appellant complains does not constitute such error as to warrant a reversal of this case. State v. Topalovaeki, 213 S. W. 104; State v. Drew, 213 S. W. 107; State v. Harrison, 263 ¡Mo. 642; State v. Prince, 258 Mo. 328; State v. Smith, 250 Mo. 369. (2) The court did not err in overruling objections of counsel to certain questions asked defendant on cross-examination. (a) The questions were based on and invited by matters brought out in his examination in chief. State v. Ivy, 192 S. W. 736; State v. Cushenberry, 157 Mo. 182; State v. Farrar, 146 Mo. 288; State v. Shearon, 183 S. W. 294. (b) Even if said questions were improper this case should not be reversed on that account for the reason that some were not answered; some were answered before any objection was interposed, and no direct or prejudicial answer was elicited in reply to any of said questions. State v. Fisher, 162 Mo. 172; State v. Jackson, 194 S, W. 1078.
   MOZLEY, C.

The grand jurors of the City of St. Louis, Missouri, on October 4, 1918, returned an indictment against Harold J. Hillebrand, wherein he was charged with having killed one Sam Brown under such circumstances as to constitute murder in first degree, and the homicide was alleged to have been committed “feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought.”

Defendant was duly arraigned, entered a plea of not guilty, and, on April 8, 1919, was tried, and the jury returned the following verdict:

.“We, the jury ija the above entitled cause, find the defendant guilty of murder in the first degree, as by the indictment he stands charged, and assess his punishment at imprisonment in the penitentiary for his natural life.”

Motions for new trial and in arrest of the judgment were filed and overruled, and the cause was duly appealed.

Defendant was a resident of the City of St. Louis and, about one month after deceased was held up and killed in an attempt to rob him, defendant enhsted in the army and was stationed at Camp Funston and while there wrote the following letter to the Chief of Police of St. Louis:

“Chief of Police,
“Dear Sir;
“As I expect to leave here in the next two weeks I will tell you that I am one of the fellows that held up and shot that shoe-dealer at Whittier and Page on a Saturday night. I heard he died ... I am telling you this as the truth from me, as I don’t want any other guy held that is innocent-.”

A member of the police force went to Camp Funston and in connection with an army officer took a written confession from defendant, going a little more in detail as to how the act was performed, but agreeing with the statements contained in the letter.

Defendant was brought back to St. Louis and at once denounced his confession as a lie, denied that he killed or aided in the killing of Brown, and assigned as reason for the course he had pursued that he was going within two weeks to be sent to France; that he was unable to get a furlough, and had adopted that method to be brought home, so that he could see his mother before going across.

Further facts will be adverted to hereafter.

I. Defendant demurred to the State’s evidence, which was overruled, and we think properly so. The facts in evidence make it a jury case and we oveiTule this assignment.

II. Defendant urges that the court erred in defining and instructing on murder in the first degree, because the word “feloniously” is omitted therefrom.

Of Instruction No. 1 we set out that part which we understand relates to defendant’s contention:

“Bearing in mind these definitions, the court instructs the jury that, if they believe and find from the evidence that the defendant Harold J. Hillebrand, at the City of St. Louis and State of Missouri, at any ^me Prior to the finding of the indictment herein, wilfully, deliberately, premeditatedly and of his malice aforethought, shot and wounded with a revolver one Sam Brown, and that within a year and a day thereafter, to-wit, on the 16th day of March, 1918, Sam Brown died from the effect of such shooting and wounding, they will find the defendant guilty of murder in the first degree, and so say in their verdict, and unless they find the facts to be as stated in this instruction they will acquit the defendant of murder in the first degree.”

The term “feloniously” is necessary to be used in an information or indictment in murder in the first degree as a word of classification of the offense charged. It is neither a definition nor part of the crime and need not be used in an instruction. [State v. Jenkins, 213 S. W. 796: State v. Smith, 250 Mo. l. c. 371;, State v. Helton, 234 Mo. 559; State v. Cummings, 206 Mo. 613; State v. Scott, 109 Mo. 226; Kelly’s Crim. Law (3 Ed.), sec. 390, p. 339.]

In the following, cases, which were murder cases, instructions that omitted the word “feloniously” were upheld by this division of the court: State v. McCarver, 194 Mo. l. c. 727; State v. Hottman, 196 Mo. l. c. 119.

In State v. Scott, supra, it was held that “the word ‘feloniously’ is but descriptive of the grade of the offense, and need not be used in the instruction, or if used need not be explained.”

To tho same effect are all the authorities above cited.

We conclude that the assignment is without merit and overrule it.

III. Defendant contends that the court erred in improperly declaring the law as to his defense of alibi. The instruction on this feature of the defense mads as follows:

“The defendant has interposed for a defense what is known as an alibi, that is, that even if the crime was coimniUed, as charged, he was at the time of the commission thereof at another and different place than that in which such offense was committed, and, therefore, was not and could not have been the person, who committed the same. Now, if the evidence leaves in your mind a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty.”

We think this instruction is well enough and overrule the assignment. [State v. Bonner, 259 Mo. l. c. 348; State v. Barton, 214 Mo. l. c. 322; State v. Cushenberry, 157 Mo. l. c. 189; State v. Glasscock, 232 Mo. l. c. 279; Inst. to Juries, p. 517, par. 454.]

IV. Defendant contends that the court erred in failing to instruct the jury upon the sufficiency and relevaucy P^ the confession of defendant and of the weight to be given a confession when made under the circumstances in this case. No authorities are cited nor reasons assigned why the instruction is supposed to be erroneous. We have carefully read it, and think there is no merit to the assignment, and overrule it.

V. Defendant alleges that “he was submitted to an illeg’al and improper cross-examination while a witness on the stand in his own behalf, and that the court erred in permitting the circuit attorney *n ^ argument to the jury to suggest and allege that defendant had been guilty of other offenses than the offense of the killing charged in the indictment.”

The State frankly concedes that defendant’s contention .that the case should be reversed and remanded on account of the above errors is not wholly without merit, but it does not think that said errors are sufficietly serious to justify that result—that the circuit attorney was within his rights in asking questions based on iuvited matters brought out in the examination in chief by appellant. . '

The cross-examination of defendant by the State and the language us.ed by the circuit attorney in his argument to the jury ran as follows:

“Mr. O’Beien: Q. You didn’t think if you accused yourself of committing robbery in the first degree that they would come after you? A. No, sir, I never done anything terrible.
“Q. And that was your reason for not accusing yourself of things you had done? A. That is the reason I wrote the letter, just simply to see mv mother before—
“Q. (Interrupting): That was the reason that you did not accuse yourself of things you had done?
“Mr. McCarthy: I object to that, your Honor; it. is an improper attack on defendant’s character, improper impeachment and cross-examination under the statute.
“The Court: Overruled.
“Me. O’Brien: Q. Isn’t that correct, that is the. reason you did not accuse yourself of sticking up. Peeler’s Drug Store, wasn’t it? A. That is a different case.
“Mr. McCarthy: I object to that question, and ask the court to instruct the jury to disregard it as an improper attack on defendant’s character and improper cross-examination under the statute, and move that the attorney be rebuked.
“The Court: Overruled.
“Mr. O’Brjen: Q. Was it? A. Why that was, that happened a month after.
‘‘Q. That happened a month after, and you thought about that didn’t you? A. I certainly did.
“Q. You certainly did. A. That is the first time—
“Q. (Interrupting): And your wife was helping you in that case, wasn’t she. Why did you not notify the police that you were guilty of that, and let them bring you back on that charge?
“Mr. McCarthy: I am going to object to that question on the same grounds, not brought out in direct examination and not proper method under the statute of impeaching a defendant as a witness.
‘ ‘ The Court : Overruled.
“Mr. O’Brien: Q. Why did you not notify the police about that and they would have brought you back in that case—these were two important events in your life? A. Yes. >
“Q. Sticking up Peeler’s Drug Store and killing this man on March 16th?
“Mr. McCarthy: I am going to object to that question on the same grounds, not brought out in direct examination, improper method of cross-examination and impeachment of a defendant as a witness under the statute.
“The Court: It will be overruled.
“Mr. McCarthy: He certainly denied being there, and Mr. O’Brien has no right under the law to refer to any other crime at this time, or to attack defendant’s reputation in this way.
“The Court: It will be overruled.”

Counsel for the State in making, his argument to the jury said:

“If he wanted to be brought back for doing a felony, there was lots of other acts that he could have mentioned that would have brought him back here just as quick as this one did, just as quick, and why should he single out something as he claims he did not do when there was things that you know and I know that he did do that would have brought him back here.”

Objection to said remarks was made and overruled by the court and exception saved and also to the ruling of the court upon the testimony a,hove set forth.

We have carefully read defendant’s examination in chief and it only discloses that he wrote the letter to the police of St. Louis and made the written confession stating that he was one of the parties who killed Brown in an attempt to rob him; his denial that either of them were true, and his testimony as to an alibi.

There is a wide distinction between impeaching a defendant bv proof of crimes to which he has pleaded guilty or of which he had been convicted prior to the trial for the crime charged against him, and those which he has not pleaded guilty or been convicted of

If the crime inquired about by the State was one which the defendant had pleaded guilty to or had been convicted of before his trial upon the charge pending against him, then, as affecting his credibility as a witness, he could be required to testify under the provisions of Section 6383, Revised Statutes 1909. A long-line of decisions in this State has thus construed said statute, among which we cite: State v. Larkin and Harris, 250 Mo. 218, l. c. 240; State v. Spivey, 191 Mo. 87, l. c. 110; State v. Corrigan, 262 Mo. 195; State v. Mills, 272 Mo. 526.

But it will be noted that the statute, supra, and the authorities cited, only apply to cases where defendant has, prior- to the trial in progress, been convicted of a crime which has no reference to the crime then on trial. But as to a crime or crimes which defendant may have committed, which have no reference to the charge upon which he is being tried, and for which he may be prosecuted, the rule is different. '

It is our conclusion that said cross-examination was improper and illegal. [State v. Blackburn, 273 Mo. l. c. 482; Constitution of Missouri, art. II,. sec. 23; State v. Wellman, 253 Mo. 302; State v. Thomas, 250 Mo. 189,l. c. 192-212; State v. Teeter, 239 Mo. 475; State v. Sharp, 233 Mo. 269, l. c. 284; State v. Thornton, 245 Mo. l. c. 440.

The cross-examination of defendant being illegal and prejudicial under the provisions of Section 5284, Revised Statutes 1909, it was the duty of the court nisi to grant a new trial.

The admission of said cross-examination of defendant by the State and the permission of the argument by the counsel for the State to the jury, with the sanction and approval of the learned trial court, must have made and doubtless did make, a very great impression on the minds of the jury adverse to the defendant— they must have thought, in view of the record, that defendant was guilty of other crimes for which he had not been prosecuted and that they had the right- to take these matters into consideration in passing on the case being tried before them.

Defendant was convicted of murder in the first degree and given a life sentence in the penitentiary, and while we do not hold this to be “cruel and unusual punishment under our Constitution and laws,” we think that such result should not be reached under grossly incompetent testimony and argument to the jury by the counsel for the State. '

It results, on account of the error pointed out, that the case will have to be reversed and remanded. It is so ordered.

Railey and White, CC., concur.

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

All of the judges concur.