author: FOX, J.

text:
    THE STATE v. ISAAC T. COOK, Appellant.
    Division Two,
    March 9, 1909.
    1. APPELLATE JURISDICTION: Misdemeanor. WThere the offense of which the defendant was convicted is a misdemeanor, the Supreme Court does not have jurisdiction over his appeal, unless a constitutional question was properly raised in the trial court.
    2. -: -: Constitutional Question. A constitutional question is not so raised as to give the Supreme Court jurisdiction over the appeal in a misdemeanor case by an assignment in the motion for a new trial that the statute under which appellant was convicted “is unconstitutional and void.” Such an assignment does not point out what part of the Constitution the statute is in violation of, or in what respect it is unconstitutional, and is insufficient to raise a constitutional question.
    Appeal from St. Louis Court of Criminal Correction.^ i Hon. Wilson A. Taylor, Judge.
    Transferred to St. Louis Court of Appeals.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    A constitutional question cannot be raised by a general statement that an act is void and unconstitutional. The specific clause in the Federal or State Constitution which the law impinges must be set out, in order to invest the Supreme Court with jurisdiction. Shaw v. Goldman, 183 Mo. 461; Ash v. Independence, 169 Mo. 77; State v. Brockmiller, 107 Mo. App. 599; St. Joe v. Ins. Co., 183 Mo. 1; State v. Cobb, 113 Mo. App. 156; Excelsior Springs to use v. Ettenson, 188 Mo. 129; State v. Gamma, 215 Mo. 100'. This court has no jurisdiction of the case at bar, because defendant has not properly raised a constitutional question in the case.
   FOX, J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction in the St. Louis Court of Criminal Correction.

Upon March 6, 1908, the assisting prosecuting attorney of the St. Louis Court of Criminal Correction filed an information in said court against defendant, charging him with failing to provide fire escapes upon the Chemical Building, a building more than three stories high, of which he was charged to be the manager. The defendant was duly arraigned and entered his plea of not guilty, and the case came on for trial on April the 11th, 1908, before the court sitting as a Wry.

With the view we entertain of this case, ■ it is unnecessary to set out in detail the testimony developed upon the trial. At the very threshold of the consideration of this cause, we are confronted with the proposition as to whether or not this court has jurisdiction of this case.

This prosecution is predicated upon the provisions of the amended Laws' of 1903 enacted by the General Assembly of 1903. [See Laws 1903, p. 251.] The amended Laws of 1903 impose certain duties upon the owner, proprietor, lessee or keeper of all buildings of a certain height, requiring a certain character of fire escapes to be attached to such buildings. The Laws of 1901, page 220, enacted by the General Assembly of this State, provided for the penalties to be imposed upon1 the owner, proprietor, lessee or manager of a building, which, under the terms of the act, was required to have one or more fire escapes, who neglected or refused for a period of sixty days after the law went into force to comply with its provisions, and made such failure a misdemeanor and designated the punishment at a fine not less than fifty dollars or more than two hundred dollars, or by imprisonment in a county or city jail for not more than three months, or by both such fine and imprisonment.

As before stated, this cause was submitted to the court without the aid of a jury, and at the close of the testimony the court found the defendant guilty and assessed the punishment of the defendant at a fine of fifty dollars. A timely motion for a new trial was filed and by the court overruled. Judgment was rendered in accordance with the finding of the court, and from that judgment an appeal was prosecuted to this court.

Manifestly the offense of which the defendant was convicted, as heretofore indicated, was a misdemeanor, and unless there was a constitutional question properly raised in the trial court this court has no jurisdiction to dispose of this case.

An examination of the record before us fails to disclose that any constitutional question was.presented to the trial court for its determination during the progress of the trial, nor was there any such question presented by the instructions requested by the defendant and refused or given by the court. The only portion of the record which discloses that the defendant sought to raise a constitutional question is in the motion for a new trial, and the question is presented in this language:

“Now comes defendant and moves the court to grant him a new trial for the reasons following:
“First. The statute law upon which defendant was convicted, namely, the Act approved March 24, 1903, Laws 1903, page 251, is unconstitutional and void.
“Second. The Act of March 27, 1901, Laws of 1901, page 219, is unconstitutional and void. ’ ’

It has uniformly been held by this court that the allegations as contained in the motion for new trial in this cause, by which it was sought to present to the court a constitutional question, were insufficient to properly present such question, and did not confer jurisdiction by appeal upon this court.

In Ash v. Independence, 169 Mo. l. c. 79, it was expressly ruled by this court that a general claim in the trial court that a law or ordinance was unconstitutional, without pointing out the precise provision of the Constitution which it offended against, was not a proper or sufficient way to raise a constitutional question, so as to give this court jurisdiction- of the appeal. The rule as announced in, that case was unqualifiedly approved in the case of St. Joseph v. Metropolitan Life Ins. Co., 183 Mo. l. To the same effect is the case of Excelsior Springs to use v. Ettenson, 188 Mo. 129.

In Hulett v. Railroad, 145 Mo. 35, the following instruction was requested:

“To hold the defendant liable in this ease would violate its rights guaranteed by the Constitution of the State of Missouri and of the United States, and would deprive the defendant of its property and rights without due process of law.”

This instruction was held insufficient to properly raise a constitutional question so as to give this court jurisdiction. Judge Sherwood, speaking for this court, in commenting upon that instruction, used this language: “As to the generalities contained in the instruction mentioned relative to the Constitution of this State and of the United States, it suffices to say that neither the court below nor this court has any call to search through the respective organic laws of the State or Union in order to find out in what particular either of them may have been supposed to he violated. ’ ’

In Kirkwood v. Meramec Highlands Company, 160 Mo. 111, the plea was that a certain act of the General Assembly “is unconstitutional, null and void, and is no law of the State of Missouri binding upon the plaintiff.” That plea was held insufficient to raise a constitutional question.

This subject was exhaustively reviewed by Judge Burgess in the recent case of State v. Gamma, 215 Mo. 100, and the same conclusion was reached in that case as in the prior cases herein indicated.

If these cases are to he followed, and we see no valid legal reason for departing from them, we see no escape from the conclusion that this court has no jurisdiction of this cause.

The grounds assigned in the motion for new trial simply state that the acts of the General Assembly, upon which this prosecution is predicated, are unconstitutional and void. There is no indication as to what provision of the Constitution was offended against. While it is true that learned counsel for appellant in his presentation of this case in the court insists that the acts of the General Assembly of 1901 and 190’3 are ex post facto laws, and therefore void, the argument of counsel is not a part of the record, nor can this court give it a place in the motion for a new trial, hence we would not he warranted in considering this indication in the argument as adding anything to the assignments made in the motion for new trial. This case upon the disclosures of the record before us is properly within the jurisdiction of the St. Louis Court of Appeals.

Learned counsel for appellant very ably presents the questions involved in this record. It is carefully pointed out that the duty of providing fire escapes in hotels, boarding or lodging houses, and other buildings of great height is imposed under the amended laws of 1903, upon the owners, proprietors, lessees or keepers of the houses designated. Attention is then earnestly directed to the provisions of the laws of 1901, which impose penalties for a failure to perform the duties provided in the amended laws of 1903. The penalties seem to be directed against the owner, proprietor, lessee or manager. Therefore, it is apparent that the question is sharply presented as to whether or not the defendant in this cause, who is charged as manager of the building, is subject to the penalty imposed under the provisions of the laws of 1901 for a failure to perform the duty which is imposed by the amended laws of 1903 upon owners, proprietors, lessees or keepers of certain buildings.

We shall not discuss this question, as we have herein indicated that this court is without jurisdiction. “It is one that the St. Louis Court of Appeals can as readily and as satisfactorily dispose of as this court. In fact, as heretofore stated, it is the only court, upon the record presented, which possesses jurisdiction to determine that question.

Entertaining the views as herein indicated, it results in the conclusion that this cause should be transferred to the St. Louis Court of Appeals for final determination, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. OLIVE M. NIEUHAUS, Appellant.
    Division Two,
    March 9, 1909.
    1. INDICTMENT: Maiming: Disfiguring: One Count. The indictment may charge wounding and disfiguring as one offense. Either maiming, wounding or disfiguring may by itself constitute but one offense, but where all resulted from the same assault with a whip and a hot iron they may all be charged in one count as one offense.
    2. -: -: -: -: One Assault. And where the wounding, maiming and disfiguring were done as a part of the one unlawful offense, though with a whip and a hot iron, there was but one assault, though there was a short interval of time between the whipping with the whip and the burning with the hot iron.
    3. -: Duplicity in an indictment, there being no demurrer or motion to quash or motion to elect, is cured by verdict.
    4. -: Wounding: Deadly Weapon: Proof. An indictment, drawn under section 1849, Revised Statutes 1899, charging defendant with having wounded, maimed and disfigured a child with a whip and a hot iron stove-lid lifter, need not allege that either was a deadly weapon, and it being not necessary to so charge it was not necessary to prove that they were deadly weapons.
    5. -:-:-: Intent to Kill. Nor was it necessary to charge that the assault was made with an intent to kill.
    6. -: -: Resulting in Death: Verdict. Nor is it necessary for the jury to find that- had the assault resulted in death it would have been murder or manslaughter, nor for the indictment to so allege.
    7. WOUNDING: What Is? The burning of a child with a hot iron stove-lid lifter, or whipping with a whip, “with such severity as to break, cut or burn entirely through the skin upon her body and to her flesh,” constitutes a wounding within the meaning of section 1849, Revised Statutes 1899.
    8. DISFIGURING: What Is? The word “disfigure” has no technical meaning, and is to be considered in its plain and ordinary sense. It means to mar the figure and to render less perfect and beautiful in .appearance. Burning and lacerating the flesh, especially if followed by scars or running sores, is “disfiguring” as used in the statute.
    9. WOUNDING AND DISFIGURING: Caring for Sores. Permitting the prosecutrix to testify that defendant did not put anything on her sores or burns after the assault, is not such prejudicial error as would authorize a reversal.

      10. -: Prior Habits of Prosecutrix. The court did not err in refusing to permit the defense to cross-examine the prosecutrix as to her habit of lying and to prove by her that prior to the day of the assault she had an inveterate habit of lying, where defendant was herself a witness and testified that she whipped prosecutrix because she lied to her on the particular day abotít putting coal oil in the stove, and where the defense was permitted to require prosecutrix to give a full explanation of defendant’s assigned reason for the assault, which was that she ,r had not put away certain ironed clothes.
    11. -: Burns: Competent Witness. A mother, in middle life, who has raised children of her own, is qualified, by common observation and experience, to testify that the scars she saw on prosecutrix looked like burns, and that they appeared to be made by an instrument which was applied in a continuous stroke.
    12. -: Instruction for Common Assault. Where the indictment is for felonious wounding and disfiguring, and does not charge an assault with intent to kill, either with or without malice aforethought, no instruction for common assault should be given.
    Appeal from Perry Circuit Court. — No». Jos. J. Williams, Special Judge.
    Aeeirmed.

      John V. Noell for appellant.
    (1) Either the instrument used to inflict the injury must be a dangerous weapon, or the wound inflicted must be dangerous. If the first instruction given by the court is correct law, then there can be no such offense as a common assault and battery in any case where the skin is broken; even if it is done by a scratch with the finger nails; and the court makes this clear in its second instruction given to the jury, which tells them, “that if defendant struck Maggie Shine with a whip, or burned her with a hot iron stove-lid lifter, with such severity as to break, cut, or bum entirely through the skin upon said Maggie Shine’s body, and to her flesh, then said Maggie Shine was wounded by defendant within the meaning of these instruct tions.” It is elementary law that every wound in-eludes the breaking of the skin, whether it be given in a felonious assault or a common assault and battery, and whether it is produced by a stroke, a cut or a burn. There was not a scintilla of evidence that the stove-lid lifter or the riding whip with which the prosecutrix claimed that she was burned and whipped was a deadly or dangerous weapon, or that any of the wounds was dangerous; on the contrary, the evidence shows that neither the instruments alleged to have been used nor the injuries inflicted were dangerous.' This being the case, the 1st, 2d and 3d instructions on the part of the State should not have been given, as there was no evidence on which to base them. Carrice v. State, 11 Mo. 579; Jennings v. State, 9 Mo. 862; State v. Bailey, 21 Mo. 484. (2) Appellant contends that the court erred in refusing the second instruction asked by defendant, telling the jury that they could not find defendant guilty of any greater offense than a common assault, as the evidence failed to show a dangerous wound or a dangerous weapon used. (3) There is nothing in the evidence which warranted a finding that prosecutrix had been “disfigured” by the act of defendant. In the first place, there was no injury to prosecutrix on any part of her body except that part which law and decency require her to keep concealed from the vision of others; in the next place the so-called “scars” were nothing but red and white spots, which Dr. Vessels testified that time would probably obliterate. But appellant contends that even if these spots or so-called “scars” would come within the definition of “disfigure” in its ordinary meaning, yet, unless they were produced by an assault made with a deadly or dangerous weapon, or were the result of dangerous wounds, they would not amount to a disfigurement within the meaning of the law as construed by repeated decisions of this court. Authorities cited in point 1. (4) The court erred in pi*eventing defendant’s counsel from cross-examining prosecutrix as to her habit of lying, and as to her being’ whipped on the occasion complained of for lying. Defendant stood in the place of a parent to the prosecutrix, and had a right to administer reasonable corporal punishment to correct her faults. ’Deskins v. Gese, 85 Mo. 485; Hay-craft v. Grigsby, 88 Mo. App. 354; 1 Bish. Cr. Law (7 Ed.), sees. 881 and 882. (5) The court erred in permitting Theresa Moranville and Martina Tucker, two witnesses for the State, to testify over the objection of defendant as to the probable instruments with which the welts and sores on Maggie Shine were inflicted, and as to how the instrument with which Maggie was burned was probably held and used. This was not a subject for expert testimony, and the court should not have permitted it. Gavisk v. Railroad, 49 Mo. 274; Gregory v. Chambers, 78 Mo. 294; Allen v. Railroad, 183 Mo. 411. Neither of these two witnesses was qualified to testify as an expert in relation to acid and solid bums; yet the court, over the objection of defendant’s counsel, permitted them to give their opinions as to the difference between these two kinds of burns, and to express their opinion that the burns on Maggie Shine were caused by a heated solid. Appellant insists that the admission of this testimony was prejudicial and reversible error. Boring v. Railroad, 194 Mo. 541; White v. Fire Ins. Co., 97 Mo. App-. 590; Graney v. Railroad, 157.Mo. 666. (6) The indictment charges that the prosecutrix received great bodily harm as the result of injuries inflicted by defendant, and section- 1849, under which the indictment was drawn, as construed by the Supreme Court in the cases of Carrice v. State, 11 Mo. 579; Jennings v. State, 9 Mo. 862, and State v. Bailey, 21 Mo. 484, says that danger to life is involved in a prosecution thereunder; yet the trial court ruled that these issues of great bodily harm and danger to the life of the prosecutrix were not involved in this case, and refused to permit defendant to introduce testimony as to said issues. Moreover, the court refused instructions 3, 4, 5 and 10, asked by defendant relating to these issues. Appellant submits that the lower court tried this case upon the erroneous theory that any wound, however slight, made in any manner whatever, whether made with a deadly or dang’erous weapon or not, would be sufficient to make a case under section 1849'. Under the instructions given by the trial court to the jury, defendant would have been amenable to the provisions of section 1849 if she had in a struggle broken the skin of the prosecutrix by a scratch with her finger nail.

      Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    The indictment is sufficient in form and substance. It fully informed defendant of the nature and cause of the accusation against her. R. S. 1899', sec. 1849’; State v. Freeman, 21 Mo. 481; State v. Bailey, 21 Mo. 484; State v. Bohannan, 21 Mo. 490'; Kelley’s Crim. Law, secs. 580’, 581; State v. Yan Zant, 71 Mo. 543; State v. Moore, 65 Mo. 606. (a) Defendant’s brief urges that “the indictment is fatally defective in that two separate and distinct, felonies are charged in one count.” The basis for this point, defendant declares, is the fact that two assaults are alleged, one with a rawhide whip and one with a hot iron stove-lid lifter. The offense charged is the maiming, wounding and disfiguring of a person. It is a single offense; for, while either maiming, wounding or disfiguring may by itself constitute an offense, all • of them together do no more when they are component parts of a single transaction, as in this case. It is also an offense which may be committed by many means. In this case the indictment alleges that it was committed by means of a rawhide whip and also by means of a hot iron stove-lid lifter. These allegations are not repugnant, and the count is not double. Bishop’s New Grim. Proc. (4 Ed.), secs. 434, 438; Joyce on Indictments, secs. 399, 400, 401; State v. Myers, 198 Mo. 232; State v. McDonald, 67 Mo. 18. (b) Defendant is too late in now for the first time raising objection to the indictment on the ground that it,is duplicitous. Defendant did not demur to the indictment, she did not move to quash it, she did not move to require the State to elect upon which one of the offenses alleged therein (if more than one) it would proceed to trial. Duplicity in an indictment is a defect which is cured by verdict. State v. Fox, 148 Mo. 524; Bishop’s New jOrim. P'roc. (4 Ed.), sec. 443; State v. Wilson, 143 Mo. 344; State v. Nagel, 136 Mo. 49; State v. Blakely, 184 Mo. 187. (c) It is not necessary that the indictment charging the offense of maiming, wounding and disfiguring should allege that the act was done with a deadly or dangerous weapon, or that the wounds inflicted were of a dangerous character. State v. Moore, 65 Mo. 606; State v. Freeman, 21 Mo. 481. And a verdict of guilty of wounding under such an indictment is sustained by evidence showing an injury to the person by which the skin is broken. Especially is this true if “there is a scar left still,” made by the wound. State v. Leonard, 22 "Mo. 450'; 8 Words and Phrases, 7528. And as to disfiguring, proof of an injury which impairs the beauty, symmetry or appearance of a person, or renders a person unsightly, should be sufficient under the "dictionary definition of “disfigure.”
   GANTT, P. J.

At the April term, 1907, of the circuit court of Perry county, an indictment was returned charging that the defendant, at said county on January 11, 1907, feloniously and willfully assaulted one Maggie Shine, and with a rawhide whip, of the length of three feet and of the diameter of three-fourths of an inch at the large end thereof, and of the diameter of one-fourth of an inch at the small end of said whip, and with a hot iron stove-lid lifter, of the length of nine inches, of the thickness of one inch and of the weight of one pound, willfully and feloniously, by the act and procurement of the said Olive Nieuhaus, did strike, wound, maim, disfigure, cut and stab her the said Maggie Shine, then and there with said rawhide whip, and with the said hot iron stove-lid lifter, in and upon the face, neck, breast, abdomen, arms, hips, legs and body of her, the said Maggie Shine, and did feloniously beat, bruise, maim, burn and wound her, the said Maggie Shine, and the said Maggie Shine then and there in manner and form aforesaid was greatly maimed, wounded and disfigured against the peace and dignity of the State.

At the same term of court, the defendant applied for and was granted a change of venue from the regular judge of said court, and it appearing that the defendant and the prosecuting attorney could not agree upon any attorney as a special judge, the cause was set down for the 8th of July, 1907, and the Honorable Joseph J. Williams, judge of the 21st Judicial Circuit, was ‘called and requested by Judge Killian to hold said court, and on the 8th of July, 1907, Judge Williams appeared in response to said request and assumed the direction of the said, cause. The defendant then made another application for a change of venue from said county on the ground that the inhabitants thereof were prejudiced against her. This application was heard and overruled and the cause was then continued until the October term, 1907. On the 21st of October, 1907, the defendant was arraigned and her plea of not guilty was entered. A jury was impaneled and the cause heard and.resulted in a verdict of guilty of wounding and disfiguring Maggie Shine both by whipping her with a whip and by burning her with a hot stove-lid lifter as charged in the indictment, and assessing her punishment at imprisonment in the penitentiary for two years. In dne time, the defendant filed her motions for a new trial and in arrest of judgment, which were by the court overruled. Sentence was then pronounced against the defendant and from that sentence she has appealed to this court.

The evidence, on the part of the State tended to prove that on the 11th day of January, 1907, Maggie Shine was a girl not quite thirteen years old. On that date she was living with Joseph Nieuhaus and his wife, the defendant, at their home at Point Rest, in Perry county. She had lived with them two or three years. She was an orphan, her mother and father both having been dead a number of years. Mr. Nieuhaus conducted a store at Point Rest and used the second story of his store building for a residence. On the 11th of January, 1907, which was Friday, in the afternoon Mrs. Nieuhaus left her baby in Maggie’s care and directed her to put some ironed clothes away, and then went down stairs. Upon returning up stairs and finding that her clothes had not been put away, she inquired of Maggie why it had not been done. Maggie explained that the baby had been cross and required her whole attention, whereupon the defendant said, “Now, I am going to whip you and burn you, you know that work was to do.” Defendant went down stairs where she remained for a short time and until her husband left the store and went to the willows, several hundred yards distance. Returning up stairs the defendant sent her little boy, Henry, down stairs to watch the store. She then took Maggie into a room, required her to strip off her clothes and put her across the bed face downward. From her drawer she took a cowhide whip and with it beat Maggie’s bare flesh. Maggie screamed, whereupon the defendant sitting upon her head to smother the screams continued to belabor her with the whip, and threatened her with a burn for every time she screamed. Letting Maggie up, the defendant then went to the kitchen and procured a hot stove-lid lifter with which she inflicted burns upon Maggie’s chest and abdomen. Defendant then sent Maggie to the corn crib near by to fetch some corn cobs. Mary Moranville, a little school girl friend of Maggie’s, passing at the time on her way home from school, heard Maggie crying and sobbing at the crib. She went to the crib and learned of Maggie ’s mistreatment. She went home and told her sister and her mother what she had learned. On the next Monday, it was the 14th of January, Maggie was at school, and there in the closet Emma Moranville made an examination of the burns on Maggie’s body, observing that some of them had scabs and some of them were raw and stuck to her clothing. On Wednesday the 16th of January, Mrs. Theresa Moranville met Maggie in a field between Point Rest and the schoolhouse and examined the upper part of Maggie’s body, where she found four or five wounds ón the fore part of her body and many welts on her back. She saw evidence in several places that blood had been- drawn by a whip. She also found bruises and green places on her body as large as a half dollar. When Maggie returned to school on Monday, January 14th, Miss Codenbach noticed that Maggie appeared to be ill, as she did not play with the pupils as usual and seemed, to be trying to keep her clothes away from her person. At the instance of Miss Codenbach some five or six of the neighbors gathered at the home of Mrs. Theresa Moranville on the 22d of January and made a thorough examination of Maggie’s clothing and injuries. On the 29th of January-Dr. Frank M. Vessels examined her injuries and about the same time also Dr. J. F. Morton examined her. From the testimony of these neighbors and physicians, it appeared that there were seven principal bums and four smaller ones on Maggie’s chest and abdomen, all of which appeared to have been made by the scraping of a hot iron or the use of some blunt instrument. One burn, near tbe collar bone, was in form and. size like that of tbe end of tbe stove-lid lifter described as tbe instrument by means of which the burns were inflicted. There was the appearance of a continuous burn started on the left breast, passing down the left side and across the abdomen, as if made by one stroke with a blunt iron instrument, which touched heavier and burned deeper as it passed across and over the ribs and over the prominent places of the abdomen, leaving severe wounds at the prominent points and merely a red streak across the depressions in her body. The marks of this stroke between the prominent places varied in width from one-half an inch to three-fourths of an inch, and its whole length was about eighteen inches. The large and deep bums at the prominent places, one of which was as large as a dollar, and several of which were of the size of a half dollar, were, at the time of the examination by the physicians, running sores, and the marks of the stroke connecting them were indicated by the redness of the skin. Both of the physicians were of the opinion that these burus were made by a blunt iron instrument and could not have been made by a hot liquid or by the spilling of acid. On Maggie’s shoulders, back, thighs and legs were found many welts as if made by a whip. Dr. Vessels counted thirty-two welts, which were prominent and distinct. In some places the welts were so thick that they ran into one another and made a continuous bruise. In some places the whip had broken the skin. The individual whip welts were about the width of a lead pencil. There were also other bruises on her body. Mrs. Moranville and the two physicians examined Maggie’s person on the day of the trial and found scars at the places where on the previous examination they had found the burns and whip wounds. Both of these physicians testified that some of the burns and whip wounds had penetrated both layers of the skin and the scars would remain as permanent disfigurements.

The defendant in her own behalf testified that she had never burned Maggie at any time, and had no idea as to the cause of the burns unless it was the fact that Maggie had knocked down a bottle of carbolic acid while dusting off a shelf. She remembered that some of the acid had spilled en Maggie’s arm. She adifiitted that she had whipped 'Maggie some -time in January, the exact date she had forgotten, with a small riding whip, but the whipping was not severe. She testified she whipped her in order to break her of the habit of lying, the immediate cause of the whipping being that Maggie had poured coal oil in the stove in order to kindle the fire and denied that she had done so when accused by the defendant of having done so. She explained the cut of Maggie’s fingers by saying it was done while cutting kindling, and that Maggie had told her that she made the bump on her head by running against a tree at school. She admitted also that one time she had paddled Maggie with a stick, which she described as a little piece of pine about a quarter of an inch thick and about an inch wide and about a half-yard Jong. She said that she did not examine’Maggie after she had whipped her and Maggie had never complained to her of having wounds or sores or sears or of anything hurting her. She explained her failure to have the whip at the trial by saying that no one had requested her to bring it. She denied that she had whipped Maggie because she had not put away the ironed clothes and averred that Maggie had been in the habit of lying and on the occasion that she whipped her admitted she had lied about putting the coal oil into the stove.' She said she had taken Maggie to raise and was very fond of her and had always treated her with kindness and gave her the same motherly care and treatment which she accorded to her own children; and that she had never had occasion to whip her own children with that whip, as her children did not lie. She testified that on the Sunday afternoon following the Friday on which it was alleged that she had whipped Maggie, Maggie was playing and singing with Esther Hagar, and in this she" was corroborated by Esther. She also testified that she and Mrs. Moranville had not been on speaking terms for more than a year, for the reason that she would not allow Maggie to play with Mrs. Moranville’s little girl, who was a very bad child. Several witnesses testified to the good reputation of the defendant and several were introduced to contradict Maggie Shine on important matters. The testimony of two of the witnesses tended to show that Mr. Nieuhaus did not go to the willows January 11th. Mrs. Moranville, however, in rebuttal testified that he did.

Maggie Shine testified that the occasion of her playing and singing with Esther Hagar was on the Sunday before she was whipped and not on the Sunday afterwards. As to the spilling of the carbolic acid Maggie explained that the acid bottle fell upon the wood box, under the shelf, where it spilled, and that none of the acid struck her. Mr. Nieuhaus corroborated the testimony of his wife as to the spilling of the bottle of carbolic acid by Maggie and as to Maggie being whipped for putting coal oil in the stove and then lying about it, and as to the treatment of Maggie by the defendant.

I. This prosecution is for violation of section 1849, Revised Statutes 1899, which provides, “If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered, by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned shall, in cases not otherwise provided for, be punished,” etc. This section has often been considered by this court and it has been uniformly ruled that, it is necessary for the indictment to state that the act was done willfully, intentionally, with malice, with a deadly or dangerous weapon, or under circumstances which had death ensued would have constituted murder or manslaughter. [State v. Moore, 65 Mo. 606; Jennings v. State, 9 Mo. 862; State v. Bohannon, 21 Mo. 490; State v. Bailey, 21 Mo. 484.]

As to the specific complaint that the indictment is fatally defective in that two separate and distinct felonies are charged in one count, we think that one single offense is charged, for while either maiming, wounding or disfiguring may by itself constitute an offense all of them together in this indictment constitute but the single offense of wounding and disfiguring the prosecutrix. The allegations are not repugnant and the count is not double. As said in State v. Myers, 198 Mo. l. c. 258, “It is well settled in this State that an assault may be charged to have been with different kinds of weapons.” Joyce on Indictments, sections 399, 490, 401, says, “Where an offense charg-ed may-be committed by two different means, its commission by both means may be charged in one count of an indictment, and proof of either will sustain the allegation. In such a case it is said that proof that any of the means were used proves the offense, and that proof that all the means described were used proves no more, the penalty also being the same.” And Bishop, in his Criminal Procedure (4 Ed.), volume 1, sections 434, 438, says, “Some single offenses are of-a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if not repugnant.” And such was the ruling of this court in State v. Van Zant, 71 Mo. 541.

Nor do we agree with the learned counsel for the defendant that the punishment testified to by the prosecutrix formed two distinct assaults. In State v. McDonald, 67 Mo. 13, the assault began in a blacksmith shop with a hammer or a pair of tongs and this was interrupted by other parties and after the prosecutor had left the shop the defendant went out and procured an axe-handle and pursued the prosecutor some seyenty-five yards from the shop and struck the prosecutor with the axe-handle, breaking his arm below the elbow. Speaking of this assault, Judge Henry said: “The difficulty in the shop and the final conflict were one and the same transaction, one continuous assault from the beginning, until, with an axe-handle, he shattered Cockrum’s arm; and the charge that the assault was made with a hammer and an axe-handle was literally true. It was not charging two assaults to one count, but one continuous assault with several weapons, which was neither impossible nor improbable, as the evidence clearly demonstrates.” [Johnston v. State, 7 Mo. 183.] So in this case, we do not think that the assault became two different offenses from the mere lapse of time which intervened between the whipping with the cow-hide and the time taken to go to the kitchen and return with the stove-lid lifter and the continuation thereof immediately upon the return of the defendant from the kitchen. In our opinion it was one continuous assault if the evidence of the prosecutrix is to be believed. Moreover, duplicity in an indictment is a defect which is cured by verdict. The defendant did not demur to the indictment and did not move to quash it nor did she ask the court to require the State to elect upon which one of the offenses alleged therein, if more than one, it would proceed to trial. [State v. Fox, 148 Mo. 517, and cases therein cited; State v. Nagel, 136 Mo. l. c. 49; 1 Bishop, Crim. Proc., sec. 443, and cases cited.]

II. In the first instruction the court instructed the jury that:

“If you believe and find from the evidence, that the defendant Olive M. Nieuhaus,- in Perry county, and State of Missouri, within three years next before the 9th day of April, 1907, did willfully and feloniously whip- Maggie Shine with a whip by which said Maggie Shine was wounded, or disfigured, then you will find the defendant guilty, as she is charged in the indictment, of wounding, or disfiguring, said Maggie Shine by said whipping, as you, from the evidence, shall believe her to have been so wounded or disfigured. And if you shall believe and find from the evidence, Olive M. Nieuhaus, at said time and place, and upon such whipping, by her, of said Maggie Shine, and in continuance by her of the punishment so inflicted upon said Maggie Shine by said whipping, did willfully and feloniously, burn said Maggie Shine with a hot iron stove-lid lifter, by which said Maggie Shine was wounded or disfigured, then you will find the defendant guilty,'as she is charged in the indictment, of wounding, or disfiguring said Maggie Shine by said burning, as from the evidence you shall believe and find her to have been so wounded or disfigured.
“If you find the defendant guilty of either wounding or disfiguring said Maggie Shine, by either said whipping or burning, you will fix her punishment therefor at imprisonment in the penitentiary not less than two years nor more than five years, or at imprisonment in the county jail not less than six months, or at both a fine not less than one hundred dollars, and imprisonment in county jail not less than three months, or at a fine of not less than one hundred dollars.”

And in the next instruction, the court instructed the jury that:

“If defendant struck Maggie with a whip or burned her with the hot stove-lid lifter, with such severity as to break, cut or burn entirely through the skin upon her body and to her flesh, then said Maggie was wounded within the meaning of the other instruction and if the lick of the whip or the burns left a scar or scars, then she was disfigured within the meaning of the instructions.”

It is insisted the court' erred in giving these instructions for the reason that the evidence conclusively showed there was neither felonious wounding nor disfiguring of the prosecutrix.

This court in State v. Leonard, 22 Mo. 449 (1856), defined what would constitute a wounding under the section on which this prosecution is based, in the following words: “As to what constitutes a wounding under this statute, we may suppose from the evidence that the prosecutrix was wounded in the legal sense of the term;, for she says that ‘there is a scar left'still’ made by the wound. In Rex v. Payne, 4 Car. & P. 558, it was held, ‘if a person strike another with a bludgeon, and break the skin and draw blood, it was a sufficient wounding to be within the statute 9 Geo. IV., ch. 31, sec. 13. Under this act it is not at all material what the instrument is with which the party is wounded. The punishment under the statute of 9 Geo. IV., chap. 31, see. 12, was in some cases death; a wound from a kick with a shoe on will be within the same statute. [Rex v. Briggs, 1 Moody’s Crim. Cas. 318.] In criminal cases, the definition of a wound is an injury to the person by which the skin is broken. [Moriarty v. Brooks, 6 Car. & P. 684; Rex v. Withers, 4 Car & P. 446.] . . . Dr. Johnson defines a wound to be ‘a hurt by violence. ’ In the case before us, the instrument was a stone about the size of the fist of a woman — for thus the witness described it — and it was thrown with such violence as to knock the woman down; and when she was afterwards examined on the trial as a witness, about a year after she received the blow, she said, ‘It bruised me severely; there is a scar there yet.’ There can be no doubt, then, of this being a wound, under the 38th section of the act aforementioned.”

But the contention of the defendant is that there was no evidence that the whip with which the prosecutrix was wounded, or the stove-lid lifter with which the evidence tended to show she was burned, was a deadly or dangerous weapon, and for this reason, the said instructions above noted were erroneous. As already said, this court has uniformly ruled that it was unnecessary to charge that the assault was made with a deadly weapon or with malice aforethought or that the indictment should state that if death had ensued it would have been murder or manslaughter. In this case the pleader has stated with particularity the weapons used and the circumstances, and the court in these instructions left it to the jury to. say whether the wounding and disfiguring was unlawfully and feloniously' done. In our opinion the statute does not require that the wounding should have been done with a deadly weapon, nor in this case, where the charge is the wounding and disfiguring, that it should have been charged that the assault was made with intent to Mil. And the jury found that the defendant had feloniously wounded and disfigured the prosecutrix by the use of a whip and the hot stove-lid lifter. It goes without saying that had death ensued from these acts of the defendant, the homicide would have been either murder or manslaughter, but it was not necessary for the jury to so say because it was not necessary to allege the same. To hold that the wounding and disfiguring with the instruments alleged and proven in this case is not witMn the statute, would be to nullify its plain provisions. We think the instructions were not erroneous and this ground of appeal is not tenable.

III. As to the assignment that the evidence did not shoyr any disfiguring of the prosecutrix, we are wholly unable to agree. The word “disfigure” has no technical meaning and must he considered in its plain and ordinary sense. Thus used it means to mar the figure and to render less perfect or beautiful in appearance. And such was the effect of the burning and lacerating of tbe flesh of tbe prosecutrix in tbis case.

IV. ' Tbe prosecutrix, after testifying that tbe defendant bad whipped her, was asked, “Did she [meaning tbe defendant] ever put anything on your sores or do anything relative to your burns?” To which tbe defendant’s counsel objected in these words: “The effect, if any, has nothing to do with tbis case.” Tbe objection was overruled and tbe defendant excepted. Tbis a,ction of tbe court is assigned as error. We are unable to see tbe ground upon which tbe exception was taken. Certainly tbe language of tbe counsel does not indicate any legal ground for excluding it. Of course tbe offense was committed, if at all, irrespective of what tbe defendant afterwards did, but we cannot see bow tbis question and answer could have bad any material effect upon tbe verdict of tbe jury. Certainly it is not sufficient to reverse tbe judgment.

V. It is next insisted that tbe court erred in refusing to permit defendant’s counsel to cross-examine tbe prosecutrix as to her habit of lying and as to her being whipped on tbe occasion complained of for lying. Tbe court permitted tbe counsel to interrogate tbe witness fully as to tbe reason given by tbe defendant for whipping on tbe day of tbe assault, but tbe counsel desired or offered to prove that previous to that time tbe prosecutrix bad an inveterate habit of lying, and tbe court ruled that whatever her habit bad been before that time, and whatever punishment tbe defendant bad inflicted on her for that habit, bad nothing to do with tbe case before tbe jury, and we think tbe court correctly ruled. Tbe defendant herself was a witness on tbe stand, and testified she bad whipped tbe prosecutrix for lying to her that "day about putting coal oil on tbe stove. She made no pretense of having inflicted the wounds upon the prosecutrix on account of her previous habit of lying, if such was the case. The claim that the defendant stood in the position of parent to the prosecutrix and therefore had the right to administer to her reasonable discipline, was fully submitted to the jury in the 8th instruction given by the court in these words: “If the jury find from the evidence that the defendant at the time she whipped the prosecutrix, Maggie Shine, with a0 riding whip, had the charge, custody and control of said Maggie Shine, for the purpose of rearing, training and educating her, and shall further find that the punishment administered with said riding whip was reasonable and moderate, and that such punishment was administered for the purpose of correcting the faults of said Maggie Shine and not to gratify the feelings of malice or revenge, then such whipping was justifiable, and the jury cannot find defendant guilty of any offense under the law for or on account of such whipping. ’ ’

The defendant testified to the facts upon which this instruction was based and gave her version of the cause for the whipping. The prosecutrix testified that the cause alleged by the defendant at that time was because she had not put away the ironed clothes. The court ruled that the defense would be allowed to ask the prosecutrix what she was whipped for that day, but would not permit proof of what had occurred previous to that time. We think the defendant had the full benefit of her explanation as to the cause for administering the whipping, and the instruction given by the court was as favorable as she had any right to demand.

YI. It is next assigned as error that Mrs. Moran-ville and Martina Tucker were permitted to testify over the objection of the defendant as to the probable instruments with which the welts and sores on Maggie Shine were inflicted, when neither of them had qualified as experts. Mrs. Moranville in her direct examination testified that on the 16th of January, five days after the alleged whipping and burning, she examined the body of the prosecutrix and found burns and marks and counted some seven burns on that day. Objection was made at that time that she was not an expert on the question of bums, but this objection is not insisted upon now, nor do we think it would be tenable inasmuch as Mrs. Moranville was a woman of middle age and had a family of four children, and we think it was perfectly competent for her to testify that a wound that she had observed upon the body of the prosecutrix was caused by a burn, as such an opinion would be within the range of common experience and observation. Besides she only testified that they looked like burns to her. She was then asked to state her opinion how these burns were produced, that is, how the instrument which inflicted the burns had been used, and she answered that it looked like whoever had done it had taken an iron point and scraped it on the body. The objection was that she could state how the wounds ranged but could not give her opinion how the instrument was used. Afterwards she stated just how the wounds or bums ranged with reference to each other and gave their dimensions. We think this also was within the range of common experience. Having examined the wounds and their relations to each other, we think that a witness of ordinary intelligence could state that it looked to her as if they had been inflicted by an instrument which was applied in a continuous stroke or application and not in separate and detached wounds or by distinct strokes. On cross-examination she testified that she had often seen bums, the children had been burned by accident and she herself had. She had never made a scientific investigation of burns.

Mrs. Martina Tucker, a married woman of some 48 years, testified that she also made an examination of the prosecutrix on or about the 22nd of January in connection with several other ladies, and that she found six or seven places that she called burns on Maggie’s body'and found bruises and welts from a whip or switch, whichever it was. Mrs. Tucker testified that these wounds which she called burns were kind of bound together. When she saw them they had healed, some of them more than others, and just one was an inch and a half or two inches in length and about an inch wide. They had scabs on them. She had seen bums, had been burned herself on the stove or with hot irons. She said that she thought that these burns on Maggie’s body looked like the bums that she had seen which had been caused by being burned by a hot iron, that is, she thought they looked like burns to her. The witness gave a full description of the size and appearance of the various burns or wounds that she saw. She also testified that she had burned herself accidentally with carbolic acid and these bums did not look like those she had seen caused by the acid. This is about the substance of the testimony.

Dr. Vessels examined these wounds and fully corroborated all that Mrs. Moranville and Mrs. Tucker had said in regard to them and also testified that a wound made by an acid left a different effect on the body than an ordinary bum and testified further that he did not believe that it was possible to pour liquid on the girl and cause the shape and condition of these scars that he found on her body. Dr. Morton fully corroborated Dr. Vessels and the other witnesses, and gave it as his opinion that these wounds had not been occasioned by scalding or done with an acid or liquid. We think that the testimony of Mrs. Tucker was competent. She had merely given her opinion that the scars were burns as the result of her' ordinary observation and experience, and, as we have said in regard to Mrs. Moranville’s evidence, we think that her experience and observation were sufficient to entitle her to give her opinion as to what had caused these wounds. Certainly we think there was no reversible error occasioned by the admission of this testimony, when it was so fully corroborated by the expert evidence of both Doctors Morton and Vessels.

VLE. Error is also alleged as to the exclusion of testimony of Emanuel Lash. This witness was called to show the unfriendly feeling existing between Mrs. Moranville and Mrs. Nieuhaus and their respective husbands. And he testified without objection that they were at outs and that the trouble seemed to have arisen in regard to a binder that Mr. Nieuhaus had sold to Mr. Moranville. The objection on the part of the State was that the witness was detailing a trouble between another Moranville and the defendant, and the court excluded it as immaterial. When Mrs. Moran-Ville was on the stand she was asked if she had been on speaking terms with Mrs. Nieuhaus for about five or six months and she answered, “No, sir, not since this trouble commenced, ’ ’ and she stated that prior to that time she and Mrs. Nieuhaus exchanged visits; that Mrs. Nieuhaus had been to her home twice since Moranville had moved out of Mr. Nieuhaus’s property. She admitted that she had signed an affidavit charging Mrs. Nieuhaus with this assault, but that the prosecution was begun in another court and nothing came of the proceedings commenced by her. The defendant testified that she and Mrs. Moranville had not been on speaking terms for a year since last August; that in August, the year before, the defendant’s mother visited her, and as Mrs. Moranville was some way related to her mother the defendant went with her mother to visit Mrs. Moranville, but that the latter never spoke to her during the visit, and that there was an ill-feeling between them for six months before the trouble came up. Taking into consideration that the witness Lash was permitted to state that the defendant and Mrs. Moranville were “at outs” and to detail the cause of the trouble between their husbands and that Mrs. Moranville had admitted that they were not on speaking terms and had not been since this trouble came up, and that the defendant had corroborated that statement as to the ill-feeling existing between them, we think it is perfectly apparent that the ill-feeling between these parties was made apparent to the jury, and whatever effect it could have upon the fairness and truthfulness of Mrs. Moranville’s testimony was secured to the defendant by the testimony. While it is true, as defendant insists, that it is perfectly competent to show the motive and animosity of an adverse witness in order that the jury may know what credit to give the statement of such a witness, yet when this animosity was so fully shown as it was in this case, it is clear to our minds that the ruling of the court did not deprive the defendant of the benefit of that principle of law and does not offer any substantial ground for the reversal of the judgment in this case.

VIII. Finally, it is insisted that the court erred in failing and refusing to instruct the jury upon a common assault. The defendant requested an instruction to this effect, which the court refused. It is to be noted in the first place that the indictment in this case is for felonious wounding and disfiguring and is not an indictment for an assault with intent to kill, either with or without malice aforethought. While there are numerous cases which hold that where the evidence is doubtful as to the grade of the assault, it is proper for the court to instruct for simple assault and battery and the jury may so find, but it is also equally well settled in this State that where the evidence on behalf of the State if true establishes a felonious assault, the court should not give an instruction for common assault. [State v. Barton, 142 Mo. l. c. 455, 456; State v. Duncan, 142 Mo. l. c. 461, 462; State v. Higgerson, 157 Mo. l. c. 402; State v. Musick, 101 Mo. l. c. 270.]

If the jury in this case had believed the defendant’s testimony under the instruction of the court, she was entitled to go acquit of any offense, but if, as they evidently did, they believed the evidence on behalf of the State, it was a felonious wounding and disfiguring of the prosecutrix, and the court properly refused to instruct upon common assault.

•We have thus endeavored to carefully consider every proposition advanced on behalf of the defendant and have reached the conclusion that there is no reversible error in the record, and that the judgment should be and it is therefore affirmed.

All of this division concur.


text:
    FANNIE STEPHENSON et al., Appellants, v. C. B. AUSTIN.
    Division Two,
    March 9, 1909.
    1. ADMISSION: Motion to Strike Out: On Appeal. A motion made in the Supreme Court by appellants to compel tbe trial judge to strike from tbe record of tbe case an admission made by' appellants upon tbe trial that their father died seized of tbe land in controversy, upon tbe ground that such admission was made by mistake, will be overruled, where tbe certified record shows tbe admission was made.
    2. TITLE: Thirty-Year Statute: Life Estate. Where there was a solemn admission at tbe trial by plaintiffs that their father died seized of the land, but no showing is made of the date of his death, and defendants show that they have been in actual adverse possession for more than ten years under color oi title and that for more than thirty years neither plaintiffs nor their ancestors had paid any taxes on the land, the decree should be for defendants, notwithstanding plaintiffs introduce a deed showing that their father deeded the land to á daughter for and during her life, and that she died within ten years, for the admission removes from the case any consideration of this lifetime estate.

      Appeal from Wright Circuit Court. — No». Argus Cox, Judge.
    Affirmed.

      S. A. Davis for appellants.
    The Statute of Limitations will not commence to run against remaindermen until intermediate estate is terminated; in this case, the intermediate estate was not defeated until the death of Mary Ann Durbin. Thomas ,v. Black, 113 Mo. 66. The possession of this land by C. B. Austin and his grantors for a period of more than ten years does not bar the right of the heirs of William Young, and the Statute of Limitations will not begin to run as against them prior to the death of Mary Add Durbin. Sutton v. Casseleggi, 77 Mo. 397; Jones v. Manly, 58 Mo. 559; Brown v. Moore, 74 Mo. 633; State v. Moore, 61 Mo. 280. Defendant’s claim to title by reason of the fact that he and his grantors have been in the possession and paid the taxes on the land for a period of thirty consecutive years just prior to the death of 'Mary Ann Durbin, is without merit. A tenant for life is bound to keep up the repairs and pay the annual taxes, even though he holds under a deed which purports to convey the fee. Bone v. Tyrrell, 113 Mo. 175. The creation of a future estate of freehold or of inheritance may be made by deed in like manner as by will. Sec. 4596, R. S. 1899.

      F. M. Mansfield and W. S. Pope for respondent.
    Defendant was in possession of the land in controversy and claimed title to it. He and his grantors had been in possession thereof more than thirty years, and neither plaintiffs nor anyone under whom they claim .had been in possession or paid taxes within thirty years. The evidence shows that defendant and those under whom he claims had been in possession for thirty or thirty-five years. Prom the abstract of title put in-evidence by plaintiffs and their petition in a former suit introduced by defendant, it appears that the land was sold to pay the debts of William Young to W. S. Pope and F. M. Mansfield, May 17, 1872, and that defendant holds title by mesne conveyances from them. Appellants have not complied with requirements of this court in any respect, and there is nothing before it that entitles them to a review of what occurred at- the trial. If, however, the court should consider the case, there is enough in the bill of exceptions to sustain the judgment and decree entered.
   FOX, J.

This cause is now pending in this court upon appeal on the part of the plaintiffs from a judgment of the circuit court of Wright county, Missouri,in favor of the defendant.

This is a proceeding under the provisions of section 650'. ’The suit was brought at the March term, 1905, of the circuit court of Wright county. The petition upon which the cause was tried was an amended petition, and it is alleged that the plaintiffs were the heirs at law of William Young, and as such heirs were the owners in fee simple of the southwest quarter of the northwest quarter of section 17, township 30, range 13, containing forty acres, situate in Wright county, Missouri. It is also alleged that the defendant, C. B. Austin, claims an estate, title and interest adverse to the plaintiffs, in and to the aforesaid land, and that said Austin is now in possession and is enjoying the rents and profits of said land. Plaintiffs finally pray the court to ascertain and determine the estate, title- and interests of the parties, both plaintiffs and defendants, respectively, in and to the land described in the petition.

The answer of the defendant denies each andi every allegation contained in the petition, except that the defendant admits that he is in possession of the land described in plaintiffs’ petition under absolute claim of ownership. The answer further alleges that the defendant and his grantors have been in the open, adverse and continuous possession of said land for -more than ten years prior to the commencement of the suit, and that plaintiffs’ action was at the commencement of said suit barred by the ten-year Statute of Limitations. It is further alleged in the answer that the title to the land described in plaintiffs’, petition emanated from the General Government more than forty years before the commencement of this action, and that this defendant and his grantors have been in the open, notorious, adverse and continuous possession of said land more than thirty consecutive years prior to the commencement of this action; that neither of the plaintiffs nor anyone for them nor anyone under whom they claim have been in possession of said land or paid any taxes thereon for more than thirty consecutive years. It is averred upon this state of facts that all right, title and claim plaintiffs might have had in said land is barred by the thirty-year Statute of Limitations, which defendant pleads as an absolute bar to this action.

Upon the trial it was admitted by the parties to this suit that William Young was the common source of title, and that he died seized of the property in controversy. Plaintiffs then offered testimony tending to show that the plaintiffs were the heirs of William Young. Plaintiffs then offered in evidence a quitclaim deed to the' land in controversy from William Young to Mary Ann Durbin. The habendum clause of said deed recites that Mary Ann Durbin was to have and hold the right, title, interest and estate hereby conveyed unto said Mary Ann Durbin and to her own use and benefit during the time she may be a widow, and at her death the above-described land to revert back to the heirs of William Young. This deed was executed on the 7th day of March, 1869, and acknowledged on the 7th day of October, 1869: The testimony further tended to show that Mary Ann Durbin died on the 24th day of October, 1900, in Jonesboro, Arkansas. The record fails to disclose when William Young died.

The defendant introduced first the original petition as fiied by the plaintiff. This original petition described the land in controversy and then alleged that the plaintiffs were lawfully entitled to the possession in fee simple of all the real estate and lands owned by William Young at the time of his death. It was also alleged in said original petition that said plaintiffs were lawfully entitled to their respective interests in fee simple in and to the real estate now in controversy by reason of the fact that said land and the title thereto was vested in William Young in fee simple prior to and at the time of the death of him, the said William Young. The abstract of title to the land in dispute was also introduced in evidence by the defendant, which showed that William Young obtained this property by deed from Samuel Thompson, dated the 17th of October, 1866. The next in order is William Young to Mary Ann Durbin, which has been heretofore referred to in the statement. Then follows a deed from Mary Aun Durbin to W. S. Pope and F. M. Mansfield, quitclaim deed, dated the 17 th of August, 1874. Then, follows- a deed by John IT. H. Mott, administrator of William Young’, deceased to "W. S. Pope and F. M. Mansfield; the date of this instrument is May 17, 1872. The next is a deed from W. S. Pope and F. M. Mansfield to Andrew J. Gordon, warranty deed, dated the 5th of September, 1876. Then a deed from A. J. Gordon to F. A. Furguson, quitclaim deed, and a quitclaim deed from F. A. Furguson to J. H. Robinett. Then follows a warranty deed from J. H. Robinett to the present defendant, C. B. Austin.

There was other testimony introduced by the defendant tending to show that he and his grantors had been in tbe open, continuous and adverse possession of tbe land in controversy for over thirty years, and that plaintiffs or anyone through whom they claim had never been in possession for more than thirty years and had never paid any taxes upon said land.

The record in this cause is by no means to be commended. In fact it is very doubtful whether it complies with the rules of this court. It seems that after the plaintiffs introduced their evidence defendant then filed an amended answer. The bill of exceptions does not show at the time of the filing of such answer any objections to it being filed or any motion to strike out. It simply shows the filing of the amended answer and what the answer contains. Then followed the reply of the plaintiffs. The bill of exceptions dóés disclose that after all the testimony was introduced and plaintiffs and defendant both rested there was an objection to the filing of the answer. The objection seems to be predicated upon the idea that this answer was filed after all the evidence in the trial of the case had been introduced, but it is a matter of impossibility to determine from the record itself at what particular time the answer was filed. According to the bill of exceptions the plaintiffs introduced their evidence; then follows the answer of the defendant and the reply of the plaintiffs. Then follows the testimony as introduced by the defendant and the testimony in rebuttal by the plaintiffs. At the close of all the testimony the plaintiffs by their counsel make the objection to the filing of the answer as heretofore indicated.

This sufficiently indicates the nature and character of this suit, at least it indicates it as near as we are able to from this confused record. At the close of all the evidence the cause was submitted to the court and the finding of the court was in favor of the defendant, followed with a decree and judgment vesting the title in him. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Prom the judgment and decree rendered in this cause the plaintiffs prosecute this appeal.

OPINION.

The record before us discloses that after this court obtained jurisdiction of this cause the appellants filed a motion to compel the trial judge to strike from the record the admission made upon the trial that William Young died seized of the property in controversy. This motion was promptly and properly overruled by this court; hence it follows that we are confronted in the record now before us with the admission upon the trial of this cause that William Ybung was the common source of title and died seized of the land involved in this controversy. This record was made in the trial court by plaintiffs and upon this record this cause must stand or fall. Appellants insist that it was made through mistake; in fact, that it was not made at all; however, the record as certified to this court shows that that admission was made, and we see no escape from the full consideration of it. Confronted by this solemn admission in the record there can be but one conclusion reached, and that is that the judgment and decree of the trial court was fully supported. With the admission that William Young died seized of the land in controversy, together with the testimony tending to show a conveyance to defendant’s grantors and the possession by the defendant and. his grantors for a period of thirty years or more, the plaintiffs upon that state of facts were clearly not entitled to have adjudged to them any interest in said land. The record fails to disclose when William Young died, and it can serve no good purpose to discuss the force and effect of the deed that he executed to Mrs. Durbin, for the admission to which we have directed attention covers the entire case and is fatal to any recovery upon the part of the plaintiffs. Should we even hold that the deed created either a vested or contingent remainder in the heirs of William Young, the record is silent as to when William Young died, and then in its last analysis we would he confronted with the admission in the record that William Young at the date of his death was seized of the land in controversy.

We see no necessity for further discussion of this subject. There seems to be no way to escape the conclusion upon the record now before us that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.