text:
    The State, Respondent, v. Ball, Appellant.
    1. In the case of a conviction for an offence not capital, an omission to enter of record the allocution, or formal address of the judge to the prisoner asking him if he has any thing to say why sentence should not he pronounced against him, is not of itself fatal.
    2. In the entry of the empannelling of a jury, the jury were stated to be “twelve good and lawful men,” and their names were given, hut the same name was inserted twice, making thirteen in all; held, that this was merely a clerical error.
    3. An affirmative verdict, in response to an indictment for murder in the first degree, of “ guilty of murder in the second degree, in manner and form as charged,” &e., is by implication an acquittal of murder in the first degree, and, so long as it stands, it is a bar to any prosecution for the higher grade of offence.

      Appeal from St. Charles Circuit Court.

    The instructions numbered one and five, mentioned in the opinion of the court, are as follows : “ 1. If the jury believe from the testimony that Ball formed a determination in his own mind to kill Mark; that this determination was deliberately formed before the act of killing took place ; and that after such determination was so formed, he did in pursuance thereof commit the act of killing in the manner charged in the indictment, then the prisoner is guilty of murder.” “ 5. If the jury believe from-the evidence that the defendant had reasonable cause to apprehend a design on the part of the deceased to kill or rob him, or to do him some great personal injury, and had reasonable cause to believe he was in immediate danger of such design being accomplished, and he shot and killed deceased under these circumstances, you should acquit him on the ground of justifiable homicide; and in sncli case it makes no difference whether defendant was at that time in any real or actual danger or not.”
    U. Wright, for appellant.
    I. Illegal evidence was permitted to go to the jury against the defendant. The case made by the proof is not the case charged. The first instruction is not law. Every fact hypothetically stated in this instruction may be true and yet no crime be committed, much less murder. The error is not cured by a separate and independent instruction touching justifiable homicide. (See State v. Phillips & Ross, 24 Mo. 491.) Self-defence includes both a design to kill and the deliberation necessary to make that design effectual. The verdict was not responsive to the charge in the indictment of murder in the first degree. (See Plummer’s case, 6 Mo. 232.; Watson’s case, 5 Mo. 497 ; State v. O’Blenis, 24 Mo. 402 ; State v. Phillips & Ross, 24 Mo. 475 ; 9 Yerg. 338 ; 6 Humph. 410.) The jury was an illegal body, being thirteen in number. (3 S. & R. 237; 8 Blackf. 561; 2 Penning. 663.) The record is conclusive of the fact. It does not conclusively appear that the defendant was present when the judgment was rendered ; Uor does it appear that the defendant was asked before judgment whether he had any thing to say why judgment should not be executed. (2 Salk. 630 ; 3 Salk. 358; 4 Black. Comm. Appendix; 6 Barr, 384; 4 Harris, 129.)

      Mauro, (circuit attorney,) for the State.
   Napton, Judge,

delivered the opinion of the court.

In capital cases the record should show that the prisoner was present when the verdict is rendered, and that he was asked, before judgment pronounced, if he has any thing to. say why sentence of death should not be passed. In England, this is considered necessary even in clergyable felonies; but no decisions have been found in that country where the omission of the allocution alone is held fatal except in cases of high treason. (1 Chitty C. L. 700; 2 Salk. 630; 3 Salk. 358.) We observe no case in this country where the judgment has been reversed for this clause alone, even where the case was a capital one, though in Hamilton v. The Commonwealth, 4 Harris, 133, this is one of the grounds of reversal. In that case it also appeared that the prisoner was not present when the verdict was rendered; or rather the record failed to show that he was present. Whether, under our practice, it would be necessary to reverse a judgment in a capital case because of the omission on the record of what is termed the allocution, or the formal address of the judge to the prisoner asking him why sentence should not be pronounced, when the record shows that he was present during the whole trial and at the rendition of the verdict and judgment and that he filed his motion for a new trial and in arrest of judgment, it is not necessary in this case to determine. The reason given for the importance attached to this form in England is, that the revising court may see that the prisoner had an opportunity of moving in arrest, or of pleading a pardon. It would not be material here whether a pardon was produced before or after judgment, as no attainder or other such consequences result from a capital conviction here, which a pardon even after judgment may not remove. It is sufficient- that the case under consideration is not a capital one, and the omission complained of is therefore unimportant.

The objection that the defendant is not shown to be present when the verdict and judgment were rendered, is not in our opinion sustained by the record. The entry is, “ Now at this day appears the said plaintiff (the State) by attorney, and the said defendant was brought into court and appeared by his attorneys,” &c. It seems the defendant and his attorneys were both present.

Nor, in our judgment, is the objection that there were thirteen jurors borne out by the record. The record states that the jury was composed of twelve good and lawful men, and gives their names, but the name of one of the jurors is put down twice. This is a clerical error, which appears on the record to be such merely, and can do no harm.

The verdict in this case is, that the defendant is guilty of murder in the second degree in manner and form as charged in the said indictment, and said jurors assess the punishment of said defendant to imprisonment in the penitentiary for ten years.” In Plummer’s case, 6 Mo. 232, the jury expressly found the defendant not guilty of murder in the first degree, and then found him guilty of some other grade of homicide embraced in this indictment. The verdict in this case, by necessary implication, finds the same thing. A conviction of murder in the second degree necessarily acquits of murder in the first degree, and the verdict in the latter case, so long as it stands, unquestionably bars any prosecution for the first named offence. Whether such a verdict would prevent an inquiry into the crime of murder in the first degree, if it was set aside and a new trial awarded, is a question not important to be determined in this case.

It is contended that instructions No. 1 given for the State and 5 given for the prisoner, are inconsistent and calculated to mislead, and that at all events instruction No. 1, considered as an independent instruction, is wrong. If we could see any ground for this construction placed upon the instructions, it would beyond doubt be the duty of this court to reverse the judgment. But we do not so understand them. It will be observed that instruction No. 1 is upon the subject of murder in the first degree, and contains an explanation to the jury of the facts and circumstances necessary to be found by them in order to convict the defendant of this crime. Instruction No. 5 is upon the subject of justifiable homicide, and is explanatory of the facts and circumstances appropriate to this defence. Each instruction is conceded to be abstractly correct, provided it be understood that the one is only applicable in the event that the other is not. This implication is, we think, a necessary one, and without which the instructions would lead to the grossest absurdity. If both instructions had been on the same topic, this implication might not be so apparent, and therefore in many cases heretofore, as in Phillips’ case referred to, this court has found it necessary to reverse for giving such instructions. This has been done because the instructions might mislead. But how could the jury have been misled in this case ? It could only be by supposing they were willing to act upon instructions, which, interpreted as they are now said to be susceptible of being, would involve plain and palpable contradictions.. But it is not easy to see how a jury of sensible men could be misled by the instructions in this case. Their attention is first directed to murder in the first degree and its constituents, and they are directed, if they find the facts as therein specified, to find the defendant guilty. They are afterwards instructed upon another view of the case suggested by the defendant’s evidence and tending to show a case of justifiable homicide, and that branch of the law is explained to them and the facts necessary to constitute the justification are pointed out. Is it possible that the jury could have been so far misled, by the omission of the court to advise them that those two hypothetical views of the case were totally independent of each other, as to suppose that they must convict the defendant of murder in the first degree, notwithstanding they might find the facts to be as hypothetically put in the instruction explanatory of justifiable homicide ? Instructions No. 1 and 6 for the State are upon the subject of murder, and leave out of view the subject of justifiable homicide, which is afterwards fully explained in an independent instruction. Is it reasonable to suppose that the jury would taire the law in the first instructions and apply it to the facts or hypothesis referred to in the second, or that they would apply the law laid down in the second to the hypothetical facts of the first ? They could not do so without arriving at manifest contradictions; but understanding the instructions as we must suppose they did, no obscurity or confusion resulted. If instruction No. 5 had been intended as a modification of instruction No. 1 upon the subject of murder in the first degree, a different interpretation of the two instructions might have been possible; and in such a state of even possible uncertainty and misunderstanding it might be proper for this court to order a new trial.

The points made here in relation to the admission of certain evidence are not preserved. No exception was taken to the admission of any evidence on the trial.

The judges concurring, the judgment is affirmed.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Hall, Defendant in Error, v. County Court of Audrain County, Plaintiff in error.
    1. An appeal will lie to a circuit court from an order of a county court removing the guardian of an insane person.
    2. In perfecting such an appeal, an affidavit and appeal bond or recognizance are not required.
    3. A mandamus will lie in such case from the circuit court to the county court requiring it to grant an appeal, although a writ of error might have . been resorted to.

      Error to Audrain Circuit Court.

    B. B. Hall in 1854 was appointed guardian of one Adams, an insane person. In 1856 the county court, without notice to him, removed said Hall from his office of guardian, and appointed one Brown guardian in his place. From this order displacing him Hall prayed an appeal to the circuit court. The court granted the appeal. It afterwards rescinded the order granting the appeal. An affidavit was made by Hall and an appeal bond. The bond was executed to and in favor of Audrain county, and Hall’s name was signed by his attorney. Hall applied to the circuit court for a mandamus directing the county court to grant an appeal. The circuit court granted the mandamus. It is to obtain a review of this action that the case is brought to this court by writ of error.

      Carr, for plaintiff in error.
    I. The county court had exclusive original jurisdiction of the appointment and displacement of guardians of insane persons. Its action is final. There is no appeal provided for. No affidavit and bond are provided for. (See 3 Ham. 277; 14 Mass. 277 ; 7 Pick. 321; 17 Johns. 280 ; 2 Sneed, 50 ; 1 Kern. 276 ; 3 Black. Comm. 400 ; 10 Mo. 594; Deane v. Todd, 22 Mo. 90;' 24 Mo. 298; 19 Mo. 223.) It does not follow, because an appeal does not lie, that the action of the county court can not be reviewed by. the circuit court. A writ of error would lie. (See 7 Mo. 470.) But if he was entitled to his appeal, he failed to perfect his right by filing an appeal bond. The instrument filed by him was no bond. Granting that an appeal would lie and that he perfected his right, still the county court having granted the appeal, it had no power to set aside its order so granting it, and said order remained in full effect. (See 20 Mo. 458; 11 How. Prac. R. 89 ; 24 Barb. 166.)

      Howell, for defendant in error.
    I. The order of the circuit court requiring the county court to grant an appeal was not a final judgment. The writ of error should be dismissed. The order of the county court for the removal of Hall and the order setting aside the appeal were irregular. An appeal lay to the circuit court. The application for the appeal was duly made and the bond sufficient. Besides, the statute does not require an affidavit and bond in this case.
   Richardson, Judge,

delivered the opinion of the court.

The main question in this case is, whether an appeal will lie to the circuit court from an order of the county court removing the guardian of an insane person. The eighth section of the 47th chapter of the revised statues of 1855, p. 530, prescribes the power and jurisdiction of the circuit courts, and in the 4th clause of the section this general language is employed: “ Appellate jurisdiction from tlie judgments and orders of county courts and justices of the peace, in all cases not expressly prohibited by law, and shall possess a superintending control over them.” We have not been referred to any provision of the statute that prohibits an appeal in a case like this; but, on the contrary, the 15th section, which defines the exclusive original jurisdiction of the county court, enumerates, among many other subjects, the power of “ appointing and displacing the guardians of orphans, minors and persons of unsound mind,” and closes with the sweeping declaration of the right “ to appeal in all cases to the circuit court, in such manner as may be provided by law.” It will be observed that the language is “ in such manner as may be provided by law,” and though the general right of appeal is given, “ the manner” is not provided in this section nor any other place that we have seen, except in relation to probate matters indicated in the eighth article concerning “ Administration.” As the manner is not provided, it would seem that neither an affidavit nor a recognizance is required, but that it should be allowed without a supersedeas, simply on the request of the party aggrieved, as was the practice in chancery cases under the old system.

The questions, what will be the operation of the appeal, and how the case is to be tried in the circuit court, are not presented by this record.

It is suggested that a mandamus will not lie, because the plaintiff had a remedy by writ of error (R. C. 1855, p. 1295), which would have accomplished every thing that an appeal could. It is generally true that a mandamus will not be granted when the party complaining has another specific remedy and can be redressed either by appeal or writ of error; (Williams & Wyan v. Judge of Cooper Court of Common Pleas, 27 Mo. 225 ;) and, if the plaintiff was now asking for a mandamus to compel the county court to vacate the order removing him, it could be replied that he had a remedy by appeal or writ of error. But there is no other mode of compelling the county court to allow an appeal; and though the plaintiff could hare taken the case up by appeal or writ of error, he had the right to his election.

The order setting aside the allowance of an appeal amounted to a refusal to grant it, and the mandamus was properly awarded.

The other judges concurring, the judgment will be affirmed.


author: Napton, Judge, Richardson, Judge.

text:
    The State, Respondent, v. Cross, Appellant.
    1. Ia a capital case, the defendant must be present at the time of the rendition of the verdict; and the record must affirmatively show his presence.
    2. Drunkenness does not mitigate a crime; nor can it be taken into consideration by a jury in determinirig whether a person committing a homicide acted thereon wilfully, deliberately and premeditatedly so as to constitute the crime committed murder in the first degree. (Richaedsoit, Judge, dissents from this doctrine, holding that, although a homicide committed wilfully, deliberately and premeditatedly is in no way mitigated or excused by drunkenness, yet, since the quality and grade of the offence depend upon the state of mind of the accused at the time of the commission of the alleged crime, his drunkenness may be taken into consideration by the jury in determining whether the killing was done wilfully, deliberately and pre-meditatedly.)

      Appeal from Franklin Circuit Court.

      C. Jones, for appellant,
    cited State y. Buckner, 25 Mo. 167 ; 1 Mo. 700 ; 3 Mo. 28 ; 6 Mo. 444 ; 8 Mo. 500 ; 9 Mo. 19 ; 12 Mo. 492 ; B. 0. 1855, p. 1191; 1 Archb. C. P. 173 ; 1 Chitty, C. L. 636 ; State v. Prance, Overton, 424; 1 Wend. 91; 1 Ills. 109 ; 5 Terg. 340 ; 11 Humph.’ 154; 4 id. 136 ; Pyrtle v. The State, 9 Humph. 663 ; Whart. on Horn. 369; 15 How. Prac. 557.

      Mauro, (circuit attorney,) for the State.
   Napton, Judge,

delivered the opinion of the court.

The judgment in this case must be reversed because the record does not show that the defendant was present in court when the verdict was rendered. The entire record of the proceedings of the court, in relation to this trial, on the day when the verdict was rendered, is as follows, to-wit: “ And afterwards, to-wit, on the 6th day of said month, in the year aforesaid, and at the adjourned term aforesaid, the further following appears of record, to-wit: “ State v. Nelson Cross. And the jurors aforesaid this day return into court and upon their oaths do say, we, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment.” The authorities are very clear and entirely uniform, both the English and American cases, that the prisoner must be present in a capital case when the verdict is rendered and the record must affirmatively show this. (Rex v. Geary, 2 Salk. 130; Dunn v. The Commonwealth, 6 Barr, 384; Hamilton v. Commonwealth, 4 Harris, 133; State v. France, Overton, 435; 1 Wend. 91.) It was so held, substantially, by this court in The State v. Buckner, 25 Mo. 172. We do not infer because the record shows the defendant was present in court on one day that he was therefore present on the following day. In the case of Dunn v. The Commonwealth, 6 Barr, 384, the record showed 'that the prisoner was arraigned on the 11th of November, 1844, and it is stated on the record that on that day a jury came, who are named, and the record then proceeded: “ Men duly summoned, returned and chosen by ballot, empannelled and sworn November 13, 1844, who, upon their oaths do say,” Ac. The court held that the record did not show that the prisoner was present when the verdict was rendered, although the record did show that on the 11th the prisoner was arraigned and was of course before the court, and leaves no inference that h© was even absent from the court-house from that day when the jury was sworn until the 13th, when the verdict came' in. This too purported to be the record of several days’ proceedings in one entry; here, the records of each day’s proceedings are distinct, as they ought to be, but the record of the proceedings of the 6th d^S^bes not show that on tluJfc day the prisoner or his counsel was eyer in^ court. ' ♦ h

The following instruction was asked upon this trial by. counsel for the prisoner and refused : “ That before the jury can find the prisoner guilty of murder in the first degree they must ascertain as a matter of fact that the accused was in such a state of mind as to do the act of killing wilfully, deliberately and premeditatedly and maliciously, and any fact that will shed light upon the condition of his mind at the time of the killing may be looked into by them, and constitutes legitimate proof for their consideration ; and among other facts, any state of drunkenness being proven, it is a legitimate subject of inquiry as to what influence such intoxication might have had upon the mind of the prisoner in the perpetration of the deed, and whether he was not, at the time of the killing, in such a state of mind by reason of intoxication as would be unfavorable to the commission of a crime requiring deliberation and premeditation.” The court gave the following instruction on this branch of the case: “ The jury are further instructed that if the circumstances attending the killing, the weapon used, the nature and extent of the injury inflicted, and the amount of violence used, with all the other evidence in the case, satisfy them that Cross intended to kill McDonald, then the circumstance of his being drunk at the time is not sufficient to repel the inference of malice and premeditation arising out of such evidence, or to mitigate the offence from murder in the first degree to murder in the second degree, or any other less offence.”

The old and well established maxim of the common law is, that drunkenness does not mitigate a crime in any respect; on the contrary, that it rather is an aggravation. Insanity is a full and complete defence to a criminal charge; yet drunkenness is a species of insanity, and is attended with a temporary loss of reason and power of self-control. But drunkenness is voluntary ; it is brought about by the act of the party, whilst insanity is an infliction of Providence, for which the party affected is not responsible. This is understood to be the basis of the distinction which the law has made between these two kinds of dementia, and is the principal reason why the rules of law have been settled so as to allow the one madness to constitute an exemption from legal responsibility, but deny to the other any mitigating qualities whatever. There are also obvious reasons of public policy why the law should be so established.

Some efforts have been made, of comparatively recent date— for the maxim we have quoted is as old as the common law itself — to qualify or to get rid of this ancient rule. Some very authoritative books on criminal law and some courts of great respectability, both in England and this country, have suggested interpretations and modifications of the axiom, tending, as we think, to subvert the principle itself for all practical purposes. Russell, in his work on crimes, says: “ Though voluntary drunkenness can not excuse from the commission of a crime, yet when, as upon a charge of murder, the material question is, whether an act was premeditated-or done only with sudden heat and impulse, the fact of the party being intoxicated has been holden to be a circumstance proper to be taken into consideration.” The authority for this suggestion of Russell is the case of Rex v. Grindley, decided at the Worcester assizes in 1819; but in Rex v. Carrol, 7 Carr. & Payne, 145, Parke, B., in the presence of Littledale, J., said “ that case was not law.”

In this country, the subject is very ably discussed by Judge Turley, of the supreme court of Tennessee, in the case of Pyrtle v. The Commonwealth, 9 Humph. 663, and by Judge Wardlaw, of South Carolina, in the case of Hute v. McCarty, 1 Spear, 392. The authorities on both sides of the question are pretty generally referred to and reviewed in each of these cases, yet the results to which the two courts arrived were quite the opposite of each other. It is true the supreme court of Tennessee declare their maintenance of the ancient doctrine of the common law in all its original severity, and repudiate quite distinctly the case of Rex v. Grindley, and the dictum of Russell based thereon; but by a process of ingenious reasoning the court seem to arrive at a conclusion indirectly overturning the principles and rules they start out with, maintaining and leading practically to the doctrine advanced by Russell and the decision of Justice Holroyd in Rex v. Grindley. It is not perceived how drunkenness can be held to be a circumstance proper to be considered by a jury in determining the question of premeditation and malice, and at the same time be considered as no mitigation of the crime. It is said that there is no inconsistency in the two doctrines, because the fact of drunkenness may show that the crime charged was not committed. If the crime charged was not committed, then it is immaterial whether the defendant was drunk or sober; he is, in either event, entitled to an acquittal. But if all the circumstances in the case, except drunkenness, show that the crime charged was committed, and drunkenness alone is the circumstance to show that by reason of its intervention among the circumstances of the case the crime was different from what it would have been in the absence of this circumstance, then it is manifest that this circumstance alone has produced the mitigation, and the old principle of the common law, which pronounces drunkenness to be no mitigation, is overturned.

In the case of Pyrtle, it is conceded in the opinion that, except in relation to the two grades of homicide, distinguished in their code as they are in ours as murder in the first and second degrees, drunkenness would not be a legitimate subject of inquiry; that upon the question of provocation it should have no weight, but on the question of premeditation it should. It is singular that in Rex v. John Thomas, 7 Carr. & P. 735, a British Judge—Baron Parke— took quite the opposite position. He is reported to have said to the jury : I must also tell you that if a man makes himself voluntarily drunk, this is no excuse for any crime he may commit when he is so ; he must take the consequences of his own voluntary act, or most crime's would go unpunished. But drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober.” The supreme court of South Carolina, in commenting on this charge of Baron Parke, admit its propriety, if it is to be understood as maintaining that he who is in a state of voluntary intoxication is subject to the same rule of conduct and the same legal inferences as the sober man, and that when a provocation is received which, if acted on instantly, woxild mitigate the offence of a sober man, and the question in the case of the drunken man is, whether that provocation was in truth acted upon, evidence of intoxication may be considered in deciding that question. But the remarks of Baron Parke, thus construed, would clearly be unfavorable to the defence, and would substantially make intoxication an aggravation rather than a mitigation.

The case put by Judge Turley to illustrate his views, and probably as strong a case as could be imagined, is, where the crime charged is murder by poison, and the question is, whether the poison was administered intentionally or by mistake. The facts supposed are, that two medicines are on the table — the one poison and the other not — and the poison is- administered. The inquiry made is, whether the fact that the man who administered the poison was drunk is not evidence to show the probability of mistake. The answer is very easy if we adhere to the doctrine that drunkenness does not palliate or mitigate a crime. A mistake-or accident may happen to a man, whether drunk or sober, and if they are more likely to occur when in the former predicament, he is not entitled to any advantage over the sober man by reason of this. If he is, the maxim of the common law is worthless, or is so easily evaded as to furnish no practical guide in the administration of justice ; there is one rule for the sober man and another for the drunken man.

According to our understanding of the law, the instruction asked by the defendant in this case was properly refused; such instructions, we think, would subvert ancient and well settled principles, and proclaim virtual impunity to .the most enormous crimes. It would only be necessary for a man to dethrone bis reason by intoxicating drafts — reduce himself to a state of brutal insensibility to the value of human life, and then taire shelter under the plea of drunkenness for protection against the consequences of his acts. If a man can thus divest himself of his responsibilities as a rational creature and then pei*petrate deeds of violence with a consciousness that his actions are to be judged by the irrational con•dition to which he has voluntarily reduced himself, society would not be safe. To look for deliberation and forethought in a man maddened by intoxication is vain, for drunkenness has deprived him of the deliberating faculties to a greater or less extent; and if this deprivation is to relieve him of all responsibility or to diminish it, the great majority of crimes committed will go unpunished. This however is not the doctrine of the common law; and to its maxims, based as they obviously are upon true wisdom and sound policy, we must adhere.

The instruction given by the circuit court was, in our opinion, substantially correct. It might and perhaps ought to be so modified as to include, among the circumstances specifically alluded to, some of those favorable to the prisoner in connection with those already stated of an unfavorable bearing, such as the previous relations of the parties, the previous and subsequent conversations, &c.

The judgment will be reversed and the cause remanded.

Richardson, Judge.

Every homicide is not murder, but the quality of the offence depends on the intent of the offender, and therefore the mental status at the time of the act must be ascertained before the legal character of the crime is determined. To constitute murder in the first degree, it must be committed wilfully, deliberately and premeditatedly. This condition of the mind is proven when death is inflicted by poison or lying in wait for that purpose; but if neither of these circumstances attend the killing, the ingredients to constitute murder must be proved, and the ability of the accused to form a purpose, to think, or deliberate, must be considered. The question is not whether there ought to be one law for a sober man and another law for a drunken man, nor whether drunkenness will mitigate the criminality of an act; for if a man commits wilful, deliberate and premeditated murder, he is guilty, drunk or sober, and deserves to suffer death; and dnmkenness will not excuse or mitigate the offence, if it were done wilfully, deliberately and premed-itatedly. But the inquiry is, whether in fact the crime has been committed; and as the essence of the crime of murder is made by law to depend upon the condition of the criminal’s mind at the time, all the circumstances ought to be heard in evidence to enable the jury to decide whether such wilful, deliberate and premeditated design existed; and drunkenness is a proper subject to be considered by the jury for whatever it is worth in determining the state and condition of the mind.

In the lower grades of felony, in which the intent is an essential element of the offence, evidence of drunkenness is always admissible. Thus, in a prosecution for passing counterfeit money, guilty knowledge must be shown, and in the absence of it there is no offence. An honest man may knowingly have a counterfeit bank bill in his pocket, and may innocently pass it; and if he were' indicted for passing it, inasmuch as the criminality of the act depends on the knowledge and the motive, the law would be cruel and abhorrent to our sense of justice that would deny him the right to show that he was so drunk at the time that he could not tell a good bill from a bad one. No reason is perceived in principle or public policy why less humanity should be exhibited in the administration of the law concerning higher offences, and, in my opinion, the substance of the instruction asked by the defendant should have been given.


author: Napton, Judge,

text:
    The State, to the use of Griffith et al., Respondents, v. Holt et al., Appellants.
    1. A judgment rendered by a probate court against an administrator, requiring him to pay over to the distributees a certain sum of money as assets of the intestate’s estate, is, in the absence of fraud or collusion, conclusive upon the securities of the administrator in a suit on his official bond.

      Appeal from Hannibal Court of Common Pleas.

      Allen, Green, and Harrison, for appellants.

      Dryden, for respondents.
    I. The judgment of the county court was conclusive upon the administrator and upon his securities. (1 J. J. Marsh. 176 ; 7 Barr, 265 ; 5 Indiana, 204 ; 20 Pick, 58 ; Rapelye v. Prince, 4 Hill, 123.)
   Napton, Judge,

delivered the opinion of the court.

The plaintiffs, as assignees of the distributees of Nancy Wilson, deceased, obtained an order on the county court of Marion county for distribution to them, by the administrator, of a certain sum of money as assets of the estate ; and upon an appeal to the circuit court this order was confirmed. This suit was against the administrator and his securities for a breach of his official bond in not paying over according to said order or judgment; and the question was, whether the securities were bound by the judgment, or were at liberty to show that the administrator had no assets in his hands, notwithstanding the judgment aforesaid.

The civil law regarded the relation of principal and surety as creating such a privity of interest as made the surety responsible for whatever bound the principal; but the security was allowed to contest the liability of the principal in any action against the latter, and to appeal from the judgment, if it was unfavorable. (6 Johns. 158 ; Pothier, part 4, ch. 3.) The general rule of the common law is undoubtedly otherwise. A judgment by the common law binds only parties and privies— privies in blood, in estate or in law; and as a security lias no opportunity of contesting the propriety of a judgment against Ms principal, nor of appealing from it after it is rendered, be is not in general bound by it. Hence, in North Carolina, in the case of Kellar v. Bowell & Campbell, 4 Hawks, 37, the supreme court of that state decided that a recovery against a guardian was not even evidence against their securities in an action brought against them on that judgment to subject them on their bond for the default of their principal; and in McBride v. Clark, 2 Hawks, 43, the same court determined that the record of a recovery by a creditor of an intestate against his administrator was inadmissible as evidence in a suit by the creditor against the securities. So in Beal v. Beck, 3 Har. & McHen. 242, the supreme court of Maryland decided that in debt upon a slier iff’s bond against a security, a judgment against the sheriff for the same cause of action was no evidence against the surety. In Drummond v. Ex’r of Prestman, 12 Whea. 515, the supreme court of the United States, in the case of a guaranty, held that a judgment confessed by the principal was prima facie evidence against the security in an action against him on his guaranty. Disapproving the decision of Beale v. Beck, they still admit that the judgment in that case against the sheriff would not be conclusive against his securities. In Pennsylvania, the decrees of their orphans’ courts are held conclusive against the securities of the administrator ; but the courts have construed the statutes there as allowing the sureties to appeal from decrees against their principal, and, if they so desire, to become parties in the original proceedings in the orphans’ court. (Garber v. Commonwealth, 7 Barr, 265.) In Massachusetts, the case of Heard v. Lodge, 20 Pick. 53, decides that a judgment against an administrator was conclusive in a suit against him and his securities for failing to pay it, unless the securities could show that it was obtained by fraud or collusion. The court says that the duty the securities have assumed is, “ that their principal will pay on demand all debts ascertained by order of a court of law against him as administrator, if the estate be solvent. His failure to make payment is a breach of the bond. This opinion was followed by the supreme court of Indiana, in 1854, in Solyer v. The State, on the relation of Taynor, 5 Porter, 203. In Kentucky, the same principles was held in Hobben & Churchill v. Middleton, 1 J. J. Marsh. 179. The court of appeals say: “ The responsibility of securities being incidental and collateral to that of the principal, a judgment in favor of a creditor against the administrator concludes the securities as to the existence and character of the debt thus ascertained, and can not be questioned or reviewed in a suit on the official bond.” In Virginia, the court of appeals, in the case of Munford v. Overseers of the Poor, 2 Rand. 315, held, that a judgment against the sheriff was not conclusive in an action'against his securities. But, in that case, Judge Green, in commenting on the case of Braxton v. Winslow, 1 Wash. 31, intimated his opinion that a judgment against an executor, so far as it went to establish a demand against the estate, could not be controverted by the sureties in a suit on his official bond, for the reason that the judgment, whether right or wrong, until reversed, bound the assets, and by the statute the executor was bound to apply the assets to the payment of said judgment; and his failure to do so might well be regarded a forfeiture of the bond, the condition of which was that the executor should administer the assets according to law.

These cases are sufficient to show that the courts of this country have not been very uniform in their application of admitted principles to different cases as they have arisen. The diversity may however, to some extent, be attributed to different kinds and degrees of liability which securities have assumed; for, although the relation of principal and security existed in all these cases, yet the character of responsibilities assumed in each may have been, and certainly in some of them were, very different. Thus, the Virginia court, although holding that a sheriff’s securities might impeach a judgment against their principal in a subsequent suit on that judgment against them, still seem to concede that it would not be so in an action against the securities of an executor, for the reason that their undertaking was that the executor could pay all judgments against the estate so far as there might be assets in his hands. And the case in Massachusetts, 26 Pick. 53, is also based upon the construction of the executor’s bond, which in its terms- was very similar to ours. Allowing for these differences, there is still, it must be conceded, a wide gap between the decisions in North Carolina, which hold these judgments against the principal no evidence at all in a suit against the securities, and those in Kentucky and Massachusetts and Indiana, which declare them to be conclusive.

The condition of the bond sued on in this case is, in accordance with our -statute, that “ the said Armstrong should faithfully administer said estate, account for, pay and deliver all money and property of said estate, and perform all other things touching said administration required by law, or the order or decree of any court having jurisdiction” This is the contract into which the securities have entered. There is no reason why parties should not be allowed to obligate themselves to abide by the result of a suit between others, and if the contract in this case can be fairly construed as imposing such an obligation, there is no hardship in enforcing it. Such an obligation does not arise out of the mere relation of principal and surety, but springs from the express stipulations of the enactment. Thus, where a mortgagee sold his mortgage and covenanted with his assignee that it should produce upon foreclosure a certain sum of money, and, if it di’d not, he should make up the deficiency; the court held the decree of foreclosure and the amount found due in that decree conclusive upon the mortgagee, although he was no party to the- proceeding., (Rapelye v. Prince, 4 Hill, 121.)

The plaintiffs here show an order or judgment of the county court of Marion county for a specific sum of money, which the court find and adjudge to be assets of the estate of Wilson in the hands of the administrator, and which they order to be paid over to the plaintiffs as assignees of the distribu-tees of that estate. They allege that the administrator has not paid this sum in accordance with the order of the county court. The defendants admit the judgment and admit that the administrator has not paid the money, but they propose to show that this order or judgment of the county court was wrong; that, in fact and truth, the administrator had no assets in his hands. In other words, they propose to try over the very questions of fact and law determined in the county court, upon the ground that they were not parties to this proceeding, and without any allegation of fraud or collusion in obtaining the judgment. Our conclusion is, that sound public policy and the practical attainment of justice will be best subserved by letting the judgments of the county or probate courts be conclusive on the securities, except in cases where fraud or collusion is shown.

Judgment affirmed;

Judge Richardson concurring. Judge Scott absent.


text:
    The State, Respondent, v. Shapleigh et al., Appellants.

    1. So long as goods imported into one of the United States from a foreign country remain in the original unbroken package, the importer may sell the same, in that form, without first taking out a license from the state authorities ; a state law requiring him first to take out aHicense would he in conflict with the constitution of the United States.,
    2. The act to tax and license merchants, approved December 11, 1855 (R.. C. 1855, p. 1072), does not, when properly construed, require the importer of foreign goods to take out a license to authorize him to sell the same in the original packages.

      Appeal from St. Louis Oriminal Court.

      Gamble, Shepley and Hannegan, for appellants.

      Mauro, (circuit attorney,) for the State.

         This ease was decided at the March term, 1858, of the supreme court.

   Richardson, Judge,

delivered the opinion of the court.

The defendants were indicted for selling goods as merchants without license. The indictment contains but one count, which charges that the defendants, as partners, on the first day of July, 1856, and on divers other days and times, between that day and the day of finding the indictment, unlawfully did deal, as merchants, without license, at a place occupied by them in St. Louis, in selling hardware not the growth, produce or manufacture of this state, and not un-manufactured articles, the growth or produce of other states.

The defendants demurred to the indictment, but the demurrer was overruled, and they then pleaded not guilty, and under a provision of the revised statutes of 1855, p. 1189, the issue was tried by the court, with the consent of the attorney for the State and the defendants. The facts were agreed, and are as follows: “ It is admitted by the defendants that during the time covered by this indictment, the defendants, as co-partners, were engaged in doing business as merchants, and that they did deal in the selling of goods, wares and merchandise at a store occupied by them for that purpose, at the county aforesaid, without a license therefor; and that, in their dealing as merchants aforesaid, they did sell goods, which were of the growth, produce and manufacture of foreign countries, imported by defendants into the United States, and on which they paid the duties to the United States, and which were sold by them in the original unbroken packages as imported; and that they sold no other goods than as above specified, and that the goods were as described in the indictment.” • There was no other evidence.

The defendants asked the court to declare the law to be “ that if the defendants neither received for sale nor sold at their store in St. Louis any other goods except such as were imported by them into the United States from foreign countries, and on which they had paid the duties to the United States on their importation, and which were sold by them in the original unbroken packages, as imported, then the defendants are not guilty, and the court will so find.” But the court refused to give the instruction, and declared the law thus: “ If defendants were co-partners, doing business as merchants, and during the time covered by the indictment did, at St. Louis county, deal in the selling of goods, wares and merchandise, as described in the indictment, the growth, produce or manufacture of any foreign country beyond the limits of the United States, at a store occupied by them for that purpose, without a license authorizing them to deal, they are guilty as charged in the indictment. For whether the merchandise sold by defendants was sold in the original or unbroken packages, and whether defendants themselves imported the goods into the United' States and into this state from any foreign country without the limits of the United States, and paid the legal import duties of the United States charged upon the same, are 'immaterial questions in this prosecution.”

The defendants were found guilty, and have brought the case into this court by appeal.

All the legislation of the state that affects this case is contained in the act to tax and license merchants, approved December 11,1855. The first section defines a merchant to be any person or co-partnership of persons who shall deal in the selling of goods, wares and merchandise, at any store, stand or place occupied for that purpose. The next section prohibits any person from dealing as a merchant without a license first had and obtained according to the requirements of the act, under the penalty of forfeiting, for every offence, not less than fifty nor more than five hundred dollars, to be recovered by indictment. By the third section merchants are required to pay an ad valorem, tax, equal to that which is levied on real estate, upon all goods, wares and merchandise purchased by them, except such as may be the growth, produce or manufacture of this state, and except such un-manufactured articles as may be the growth or produce of other states. The fourth section prescribes that “ any person or co-partnership of persons applying for a license to vend merchandise shall, before he or they shall receive such license, execute a bond to the state with two or more good and sufficient securities, who shall be freeholders at the time, conditioned that he or they will, on or before the first day of November next following, pay to the collector of the proper county the tax due upon such license.” It is made the duty (sec. 6) of every person or co-partnership of persons, on the first day of November of each year, who shall have obtained a license as provided in the previous section, to file in the office of the clerk of the county court, in which the license may have been granted, a statement of the amount of all goods, wares and merchandise received for sale by him or them within the year then ending, excepting such as may be the growth, produce or manufacture of this state, and excepting such unmanufactured articles as may be the growth or produce of other states ; and the seventh section requires that the statement shall be verified by affidavit.

It is admitted that during the time covered by the indictment the defendants only sold, in the original unbroken packages as imported, such, goods as were of the growth, produce and manufacture of foreign countries, imported by them, and on which they paid the duties to the United States; and the question now to be decided is, whether the legislature of this state can consistently with the constitution of the United States require the importer of foreign merchandise to take out a license before he can lawfully sell the same in the condition in which it was imported.

This identical question was before the supreme court of the United States, in the case of Brown v. State of Maryland, 12 Wheat. 419, and it was decided by that court that the exercise of such a power by a state was repugnant to that clause of the constitution which declares that “ no state shall lay any impost or duties on imports or exports,” and also to the clause which empowers “ Congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In that case Brown was indicted for violating an act of the legislature of Maryland, which required that all importers of foreign merchandise, selling the same by wholesale, bale or package, hogshead, barrel or tierce, should take out a license before they were authorized to sell. The opinion of the court was delivered by Chief Justice Marshall, and it was held that an impost or duty on imports was a custom or tax levied on articles brought into the country; and though it was most usually secured before the importer was allowed to exercise the rights of ownership over them, it would not be less an impost or duty if it were levied on the articles after they arrived ; and that the practice of levying or securing the duty before or on entering the port did not limit the power to that state of things; that imports are things imported, the articles themselves, which are brought into the country, and that “ a duty on imports” then was not merely a duty on the act of importation, but was a duty on the thing imported; that an article imported under the authority of an act of Congress continued to be a part of the foreign commerce of the country while it remains in the hands of the importer for sale in the original bale or package in which it was imported; that the right to import necessarily carried with it the right to sell the imported article in the bulk and shape in which it was imported ; and that no state, by direct assessment or by requiring a license before the importer was permitted to sell, could impose any burdens on him or the property beyond what, the law of Congress had imposed; and that this righ tcontinued so long as the package was unbroken and remained the property of the importer; but that when the original package was broken up for use or for retail by the importer, or passed from his hands to a purchaser, it ceased to be. an import or a part of foreign commerce. The learned judge then concludes, that “ any penalty inflicted on the importer for selling the article in his character of importer must be in opposition to the act of Congress, which authorizes importation. Any charge on the introduction and incorporation of the articles into and with the mass of property in the country must be hostile to the power given to Congress to regulate commerce, since an essential part of that regulation and principal object of it is to prescribe the regular means for accomplishing that introduction and incorporation.”

This case came under review in the license cases, (5 How. 504,) and the passenger cases, (7 How. 283,) and instead of being overruled, as has been asserted, it was expressly approved and affirmed by a majority of the judges, so far at least as it maintains the exclusive power of Congress over foreign commerce. Chief Justice Taney, in the license cases, observes, that he argued the case of Brown v. Maryland for the state, and, though he thought at the time that the court restricted the powers.of the state more than a sound construction of the federal constitution warranted, that further and more mature reflection had convinced him that the rule laid down by the court was a safe and just one, and perhaps the best that could have been adopted for preserving the lights of the United States on the one hand, and of the state on the other, and preventing collision between them. And he then remarks that “ goods imported, while they remain in the hands of the importer in the form and shape in which they were brought into the country, can, in no just sense, be regarded as a part of that mass of property in the state usually taxed for the support of the state government; * • * * and a tax upon them while- in this condition for state purposes, whether by direct assessment or indirectly by requiring a license to sell, would be hardly more justifiable in principle than a transit duty upon the merchandise when passing through a state.” ,

This case falls directly within the principle established in Brown v. Maryland, and as long as that case stands in the court that decided it, it is our duty to respect it. State legislation must yield to the commanding authority of the constitution of the United States, and whilst in construing our own laws and constitution we recognize no higher authority than this court, we feel bound in all judicial questions affected by the laws of Congress and the federal constitution to follow the decisions of the supreme court of the United States, whose duty it is to expound them. Therefore, as we are bound by 'the decisions of that court on such questions, whether as individuals we concur or not in their, reasonings or conclusions, it is unnecessary for us to extend this opinion by any views of our own, either in favor of or against the doctrine of Brown and Maryland. It is decisive of this case, and that is sufficient for us.

It is not necessary, however, for the decision of this case to declare the statute unconstitutional on which the indictment was framed, for it may stand and be executed in perfect harmony with this opinion. The act does not in terms declare that the importer of foreign merchandise shall take out and pay for a license to secure the privilege of selling, when he proposes to sell only in the original package ; neither does it require the merchant to include in his statement goods expressly exempted by the constitution of the United States from the burdens imposed by state laws on, other goods ; and it will not be presumed that the legislature sought to do what it had no power to do, or that it attempted to abridge or invade private rights secured by the paramount law of the land. But if the importer breaks up the original packages for sale or for use, or changes the form in which they were imported, or they pass into second hands, the goods will lose their distinctive character as imports and become subject to the taxing power of the state, and in such cases nothing that has been said will protect an article so acted upon by the importer.

This view of the subject was taken by this court at an early day, in the case of the The State v. Tracy & Wahrendorf, 3 Mo. 3. The defendants in that case were indicted for violating the act of March 1st, 1825, which required that all merchants should pay a tax on their whole stock in trade except such goods as were the growth, produce or manufacture of this state; and provided that before any person should receive a license to vend merchandise, he should deliver to the collector of the proper county a complete, statement in writing of all the goods, wares and merchandise, 'except as aforesaid, received at Ms store, &c. No exception was made by the act in favor of imported goods. It was objected that the indictment was defective because the offence charged was not necessarily unlawful, inasmuch as the selling of goods without license was legal or illegal according to the kind of goods sold and the -manner-of selling them. ' But the court, recognizing the binding Authority of Brown and Maryland, held the indictment sufficient, and- that ‘ if the defendants sold only such goods as they could lawfully sell without license from the state, their defence would be available on the trial, where “ they could move the court to exclude all evidence of such sales as they might lawfully make. -

In our opinion the demurrer was properly overruled; but the court ought to have given the instruction prayed by the defendants, and refused the instruction that was given. All the facts being admitted, the case stood as upon a’special verdict, on which the defendants were entitled to a judgment in their favor.

Judge Scott concurring,

the judgment of the criminal court will be reversed, and the defendants discharged from their recognizance.


text:
    Moreau et al., Appellants, v. Branham et al., Respondents.
    1. A sheriffs deed must be under seal; if not sealed, a court of 'equity can not aid its imperfect execution; nor should a court presume such a. deed 'to be sealed against the express admission, in an answer, of the party invoking such a presumption, that the sheriff omitted by mistake to seal the deed.

      Appeal from Ste. Genevieve Circuit Court.

    The facts sufficiently appear in the opinion of the court. (See also Moreau v. Detchmendy, 18 Mo. 522.

      Frissell and Detchmendy, for appellants,
    cited Chouteau v. Borlando, 20 Mo. 486; 2 Stark. Ev. 663; 5- Mo. 281; Moreau v. Detchmendy, 18 Mo. 530 ; Craig v. State of Missouri, 4 Peters, 436.

      Noell, for respondents.
    I. The sheriff’s deed was upwards of thirty years old, and that, together with the other facts of the case, warranted the court in presuming the deed to have been sealed. (Taylor on Evidence, 104 ; .1 Greenl. Ev. § 144 ; Matthews on Presumptions, § 35j 36, 39.) There was sufficient proof of a sale by the sheriff to make a good equitable defence independent of any deed. (Dessaunier v. Murphy, 22 Mo. 95; Best on Presump. 76, 81.) The plaintiffs’ action was barred by limitation.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiffs brought ejectment for a tract of sixteen hundred arpens confirmed to Pascal Detchméndy, their ancestor, against Danville James and William Branham. After the commencement of the suit, M. Mailer, Francis X. Dahmen and Francis Burlando, on their application, were made defendants, and filed their answer. They averred in their answer that in the lifetime of Pascal Detchmendy a judgment was recovered against him in the circuit court of Ste. Genevieve county, on which an execution was issued directed to the sheriff of that county, who levied on and sold, in May, 1823, his interest in the land in controversy, and that St. Gemme became the purchaser ; “ that said sheriff undertook to make to said St. Gemme a deed for said land, but by mistake omitted to seal the same so as to make it legally sufficient to pass the legal title thereof.” They further averred that by mesne conveyances they had become the legal and equitable owners, for a valuable consideration, of all the right acquired by St. Gemme at the sheriff’s sale; and “ that in consequence of the said mistake and omission the legal title to said land had remained in said Pascal Detchmendy and his heirs after his death;” and then asked, “ that the legal title remaining in them be divested and that the same be vested in respondents.” The original defendants also filed an answer, in which they admit that they entered into the possession of the whole tract, but deny that the plaintiffs are entitled to any interest in it; that the title before and at the commencement of the suit was in Mailer, Dahmen, Burlando and John Bullier, who, and those under whom they claim, had had possession for more than twenty years; and “ that they entered into the possession of said land, and retain the same under license from said M. Mailer, Francis X. Dahmen, Francis Burlando and John Bullier.”

The court found the facts and declared as a conclusion of law that the instrument executed by the sheriff to St. Gemme was a valid conveyance of Pascal Detehmendy’s interest in the land, and “ that the presumption arising from the proof of possession, taken in connection with all the other facts found, established that the instrument was a sealed instrument.”

The character and legal effect of the instrument executed by the sheriff to St. Gemme was considered by the court in the case of Moreau v. Detchmendy, 18 Mo. 522, where it was decided that a conveyance by a sheriff of land sold under execution could only be by deed under the seal of the officer, and that the court was precluded from considering the question whether the evidence justified the presumption that the instrument was sealed, because the circuit court had found it was not sealed. In this case a stronger objection is interposed by the statement in the answer of the principal defendants, that “ the sheriff by mistake omitted to seal the deed so as to make it sufficient to. pass the legal title.” A court would hardly be justified in presuming the existence of a material fact against the express admissions of a party that it did not exist, and any presumption that might be indulged, from the evidence in this case, that the instrument was sealed, is overcome by the positive statement in the answer of the parties invoking the presumption that it never was sealed.

If the Branhams asserted title to the land or any part of it exclusively to themselves, or in common with others, and not a joint interest, but a mere community of interest with the other defendants, then the admissions of their tenants in common or co-defendants would not prejudice their rights or be received in evidence against them. (1 Greenl. Ev. § 176.) But in their answer they do not claim title, but on the contrary they disclaim it, and say that the title is in Mailer, Dahmen, Burlando and Bullier, under license from whom they entered and retain possession.

The other judges concurring, the judgment will be reversed and the cause remanded.


author: Scott, Judge,

text:
    Allen, Appellant, v. Moss, Respondent.
    1. By the Spanish law a verbal sale of immovable property was valid; to con- . stitute such a sale valid it was not necessary the vendee should take possession, though taking possession would be strong corroborative evidence of such a sale. , *
    2. The eighth section of the act of October 1st, 1804, (1 Terr. Laws, p. 47,) requiring all deeds and conveyances to be recorded under the penalty of being adjudged fraudulent and void against subsequent purchasers and mortgagees, did not overthrow the rule of the Spanish law making verbal sales of land valid.
    3. Where a deed of conveyance purports to have been executed by making a mark or cross and has been attested in the same manner, the 27th section of the act of March 25th, 18á5, (R. C. 1845, p. 223,) did not authorize the granting of a certificate of proof of such a deed.
    4. Where a document is admissible in evidence for any purpose, it should not be excluded; it devolves on the opposite party to call on the court to state and explain to the jury liow far and for what purposes it is evidence.
    5. The record of a deed' not acknowledged or proved according to the law in force at the time such record was made, imparts notice to all persons of the contents of such deed. (See It. 0.1855, p. 731; Sess. Acts, 1847, p. 95.)
    6. Under the-act of July 3,1807, (1 Terr. Laws, p. 120, § 45,) a sheriff’s deed unacknowledged in court was ineffectual to pass the title to the purchaser ; the authority of the sheriff being statutory, it should have been strictly pursued.

      Appeal from Jefferson Circuit Court.

    The facts are set forth with sufficient fullness in the opinion of the court.

      S. T. Glover, for appellant.
    I. The court erred in receiving as evidence the transcript of the record on the claim of Smirl. It could not be used as evidence of title in any way; nor could the supposed deeds in said transcript contained be received as evidence against the plaintiff without some proof of their execution. The court erred in receiving-the originals óf said supposed deeds when offered by the defendant as evidence in connection with the affidavits of William Moss and Claibourne Thomas. They were no evidence of the execution of said deeds. (See R; 0. 1845, p. 222, § 22.) The act of February 2, 1847} (Sess. Acts, 1847, p. 95,) is no help to this testimony. The court erred in instructing the jury, on motion of defendant, that prior to 1816 no writing was necessary to a sale and conveyance of land. (See 1 Terr. Laws, p. 47, 178.) Instructions No. 5, 6 and 8 were erroneous. The court erred in not holding the unrecorded deeds void as against subsequent purchasers, for value, who recorded their -deeds after the lapse of time mentioned in the statute. The execution of the deed of Ware and Clark and Brinley was legally proved. (R. C. 1855, p. 726, § 18.) The court erred in not giving the instruction asked by plaintiff, with respect to the plaintiff’s deed to Clark. When Clark joined Brinley in purchasing the land from Ware, he was estopped to deny that the deed of Ware conveyed the land to himself and Brinley in 1815.

      Noell, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The foundation of this suit is a settlement right under the second section of the act of Congress of March 2d, 1805. The settler was Hardy Ware. In 1805 or ’6, James Smirl, assignee of John Brinley, who was assignee of Hardy Ware, presented the claim to the board of commissioners, who in 1806 rejected it for want of actual inhabitation on the 20th December, 1803. This claim might have been confirmed, as it appears from the evidence, under the third section of the act of June 13, 1812; but, as no steps were taken to effect that object, it -can not now be sustained as a confirmation under that section. Under the seventh section of that act, William Bussell, as agent for the claimant, gave notice to the recorder that the legal representatives of Hardy Ware claimed eight hundred arpens of land in the district of St. Louis, on the Meramec river.- This claim embraced the land in controversy. It was filed on the 12th November, 1812; was reported for confirmation by the recorder and confirmed by the act of 29th April, 1816. It was confirmed to the legal representatives of Hardy Ware. On the 11th day of August, 1815, Hardy Ware conveyed the claim to William Clark and John Brinley, by a deed recorded on the 23d of September, 1816, the northern half to Brinley and the southern half to Clark. On the 9th day .of December, 1815, John Brinley conveyed his part to William Bussell. This deed was recorded on the 13th day of December, 1815. In February, 1855, Bussell conveyed to Thomas Allen, the plaintiff, by a deed recorded the 30th day of May,'1855. Before the board of commissioners and the recorder, there wa,s a deed from Hardy Ware to John Brinley and one from John Brinley to James Smirl, both dated in October, 1805, on a day of the month not named. The grantors in these deeds, as well as the subscribing witnesses, were crossmen. On the 6th day of December, 1848, the execution of these deeds was proved by two witnesses. This was done.under the 27th section of the act concerning conveyances, with a view that the deeds might be admitted to record. All the parties to the deeds, the grantors as well as the witnesses, having signed with a cross, the witnesses could not prove the handwriting, but testified that they were present and saw the parties sign the deeds, and heard them acknowledge that they were their acts and deeds respectively. They also saw the subscribing witness sign his attestation with a cross. In July, 1811, William Clark recovered a judgment against James Smirl, on which an execution issued, by virtue of which the claim of Smirl was sold and Clark became the purchaser. The deed to Clark was never acknowledged in open court. It was dated on the 7th March, 1812, and a great many years afterwards its execution was proved by a subscribing witness and it was put upon record. Allen, the plaintiff, did not show any conveyance from Clark to him, directly or indirectly, of the land purchased by Clark at the sheriff’s sale. There was evidence offered to show the want. of identity between the Hardy Ware who executed the deed in 1806, and the Hardy Ware who signed the deed in 1815 to Clark and Brinley. One of these deeds was signed with a cross, and the other without it. There was offered also evidence to show that William Russell, under whom the plaintiff claimed, was aware of the claim of Smirl to the land in dispute. The defendant claimed in right of one of the heirs of James Smirl. This suit is for the dbrthern half of the claim conveyed in 1815 by Ware to Brinley.

The court, at the instance of the plaintiff, gave the following instructions : “ 1. The confirmation of the tract of land in controversy by the act of Congress of 29th April, 1816, was a confirmation to the legal representatives of Hardy Ware. 2. The legal representatives of Hardy Ware are such persons as are shown by the evidence to be legally entitled to the land confirmed by purchase from him, and showing a chain of valid transfers and conveyances from him. 3. Under the Spanish law that prevailed in the territory of Missouri until 1816, it was not necessary, in order to convey real estate, that there should be a deed or other instrument of writing executed by the, seller to the purchaser, but it was competent and legal to sell and convey title to a purchaser by parol without deed or instrument. 4. The claim of Hardy Ware’s representatives presented by William Russell, as agent, to Frederick Bates, recorder of land titles and acting commissioner for settling claims to land in the territory of Missouri, was confirmed by the act of Congress approved 29th April, 1816, and enures to the benefit of such person or persons as are shown to have title to the land acquired by a regular chain of valid transfers from him. 5. If the jury find from the evidence that the deed from Hardy Ware to Clark’ and Brinley be a genuine deed and that it was recorded before the deed of Hardy Ware to Brinley and before the deed of Brinley to Smirl, then the title acquired under the first mentioned deed is a better title than that acquired under the two last mentioned deeds. 6. There is no evi<? ace before the jury of a confirmation of any other claim, dist— ct from that of Hardy Ware’s legal representatives. 7. Thei-- 's no evidence before the jury of the confirmation of any claim to Smirl other than the one to which he may have shown title to as the representative of Hardy Ware. 8. In the absence of any evidence to the contrary, the jury will infer that the Hardy Ware who claimed and first settled the land in controversy is the same person mentioned in the various deeds in evidence.”

The court refused to give the following instruction asked by plaintiff: “ 9. The deed from McNair, sheriff of St. Louis district, to Clark divests Smirl or his heirs of all title to the land thereby conveyed; ahd if the jury find that the land described in said deed is the same land claimed by defendant, then neither Smirl nor those claiming undr him are legal representatives of Hardy Ware.”

The defendant then asked the court to instruct as follows: “ 1. Under the Spanish law that prevailed in the territory of Missouri until 1816, it was not necessary, in order to convey real estate, that there should be a deed or other instrument of writing executed to the buyer by the seller; but it was competent and legal to sell and convey title to a purchaser by parol without deed or written instrument, provided the party purchasing took possession of the real estate so bought by him. 2. The claim of Hardy Ware’s legal representatives, presented by William Russell as their agent, to Frederick Bates, recorder of land titles and acting commissioner for settling land claims in the territory of Missouri, was confirmed by the act of Congress of 29th April, 1816, and enures to the benefit of such person or persons as are shown to have had a valid title ■ to the land on that day, and now is the property of such person or persons, or those who may legally claim under them. The confirmation by act of Congress of 29th of April, 1816, was a confirmation to the person or persons on that day legally entitled to the settlement right of Hardy Ware, the original claimant in Spanish times. 3. If the jury believe from the evidence that the claim of Hardy Ware to the land in controversy was sold by him to John Brinley in 1805, and by said Brinley to James C. Smirl in the same year 1805, whether such sale was by deed or other instrument of writing, or by parol, and that the said Smirl took possession under such sale, and that the land confirmed to Hardy Ware’s legal representatives and in dispute here was the same land so sold to Smirl, and that Smirl had not conveyed or disposed of the same in any way pior to the confirmation, and he was then alive, they are instructed that the confirmation was to said Smirl, as the legal representative of Hardy Ware; and unless the plaintiff shows a title derived from him or those legally claiming under him, they will find for the defendant. 4. If the jury find from the evidence that Hardy Wáre sold his claim to the land in controversy prior to the date of the confirmation on the 29th of April, 1816, then the confirmation was to such person as was' the first legal purchaser from said Ware; and those who show themselves by evidence to be entitled thereto under such legal purchaser must recover in this action. 5. If the jury find from the evidence that at the date of the deed from Hardy Ware to Brinley and Clark, on the lltli of August, 1815, the said John Brinley had actual notice of the sale and conveyance by the said Hardy Ware to himself, said Brinley, and from said Brinley to Smirl in 1815, as evidenced by the deeds read in evidence by defendant, then.the failure to have said last mentioned conveyance acknowleged or proved and recorded does not render them fraudulent or void as against said Brinley. 6. If the jury find from the evidence that William Russell at the date of the deed from John Brinley to William Russell, to-wit, the 9th of December, 1815, had actual notice of the sale and conveyance by Hardy Ware to John Brinley, and by said Brinley to James 0. Smirl in 1805, then such deeds are not fraudulent or void as against said William Russell. 7. The deeds from Ware to Brinley and from Brinley to Smirl, dated in the year 1805, having been proven and recorded prior to the 25th day of February, 1855, the date of the deed from Russell to the plaintiff, impart notice thereof to the plaintiff notwithstanding they may not have been proven and recorded within the time prescribed by law. 8. The jury may take into consideration the actual possession and occupation of Brinley and Smirl under the deeds of 1805 read by defendant, and also the facts stated by William Russell in the notice of the claim before the recorder of land titles in November, 1812, in determining whether said Russell had actual notice of the sale and conveyance of the claim to Brinley and from Brinley to Smirl in 1805. 9. If the jury believe from the evidence that the deed introduced by the plaintiff, signed Hardy Ware, and dated 11th August, 1815, purporting to convey the land in controversy to William Clark and John Brinley, was not executed by the same Hardy Ware who claimed the right to settle the land in Spanish times, they will find for defendant. 10. The plaintiff in this case can not recover for any interest in the land in controversy which Clark may have acquired under the sheriff’s deed read in evidence.” Of these instructions, the court gave those numbered 1, 5, 6, 8, 9 and 10, and refused those numbered 2, 3, 4 and 7.

The two instructions given by the court relative to the validity of sales of land without writing, under the Spanish government, were contradictory. That given for the plaintiff simply asserted the proposition that sales of land without writing were valid under the Spanish government. The instruction given for the defendant qualified this with the proviso that the party purchasing took possession of the estate bought by him. In the case of Gonzales v. Sanchez, 4 Mart. La. N. S. 457, which is the first reported in Louisiana in relation to this subject, we do not find any qualification of the rule, though it it said in that case that the purchaser possessed and cultivated the land sold in the lifetime of the vendor. In the case of Maes v. Gillard’s heirs, 7 Mart. N. S. 321, it is held that a verbal sale of immovables was valid under the Spanish government of Louisiana. The court remarks that “ the evidence in this case, coupled with the uninterrupted possession of the vendee and his successor for nearly thirty years, satisfies us that La Cour did purchase as the defendants allege.” In the case of Ducrest’s heirs v. Byeau’s estate, 8 Mart. N. S., it is said that “ it has already been decided by this court, after much consideration, that by the Spanish law parol evidence was admissible to establish the alienation and acquisition of immovable property.” In Sacket v. Hooper, 3 La. 107, it is said “ that a verbal sale of real property, accompanied by delivery to and long possession of the vendee, was valid under the laws of Spain, has been already settled by this court in the case of Gonzales v. Sanchez, 4 Mart. N. S. 457.” Upon the whole, we are of the opinion that the rule of the Spanish law relative to verbal sales of immovables was not like that of the common law, which made livery of seizin necessary to transfer a freehold estate; but that the taking possession was a strong circumstance in proof of such a sale, but not necessary to its validity. What would be a taking of possession must be determined from the state and condition of the immovable at the time of sale, and the purposes and objects for which it was intended. Land may be in such a state that immediate actual possession can not be taken of it. The evidence of possession must be the acts which were usually done in those times by persons claiming such lands. Where there is no proof of any possession nor evidence of any acts asserting a dominion over the property by the reputed purchaser, the allegation of a verbal sale would not receive much countenance from a jury. We are not aware that the eighth section of the act establishing recorders, passed in 1804, requiring all deeds and conveyances to be recorded, under the penalty of being adjudged fraudulent and void against subsequent purchasers or mortgagees, has been regarded as being in vari-anee with the Spanish law on the subject of verbal sales. That act was simply designed for the protection of subsequent purchasers and mortgagees. The act to prevent frauds and perjuries, one of the objects of which was to prohibit parol sales of land, was not introduced until the 20th January, 1816. (Mitchel & wife v. Tucker, 10 Mo. 260.)

The court erred in permitting to be read, as recorded deeds, the conveyances of Hardy Ware to John Brinley and of Joseph Brinley to James Smirl, admitted to record on the proof of two witnesses under the 27th section of the act concerning conveyances. These deeds were both signed with a cross, and the attestation of the subscribing witness was also signed with a cross. The section ■ referred to requires that the witnesses proving the execution of a deed in order to its'being recorded, shall state on oath that they well knew the signature of the party whose name is subscribed to the deed ; so they shall state that they personally know the person whose name is subscribed to such instrument as a -witness and knew well his signature. It can not be perceived how a deed subscribed with a cross can be proved under this section. There is no handwriting to the instrument, either of the grantor or subscribing witness. It can not then be embraced in the law. The testimony of the witnesses amply proved the execution of the deeds, had it been given in court on the trial after accounting for the absence of the subscribing witness. But the existence of the evidence should have been preserved under the act for perpetuating testimony. To suffer deeds to be proved in an ex parle proceeding by living witnesses who saw them executed, would be a very dangerous practice. The error of admitting these instruments as recorded deeds was not helped by the fact that they were ancient. The genuineness of ancient instruments is a fact to be found by a jury. The court by suffering the instruments to be read as recorded deeds, withdrew from the jury the consideration of the question whether their execution was proved as ancient instruments. Under all the circumstances, they might have been submitted to the jury, who would have determined whether they were genuine ; but .this was not done.

The copies of the deeds contained in the record, certified from the recorder’s office, were certainly not any evidence whatever of title in James Smirl to the land in controversy. It is remarkable how often this question has arisen, and how little care seems to be taken in the trial of causes to avoid it. We have held that if a document is admissible as evidence for any purpose, it may be read, and it is the duty of the opposite party to call on the court to state and explain to the jury how far and for what purposes it is evidence, and to take care that the party using it obtains no unjust advantage by it; and we .do think the court ought to be very particular in this matter, for they must see how eagerly it is pressed on them, on one pretension, when the object o'f it is to prepossess the minds of the jury by evidence which is not admissible. As it was deemed important to affect William Russell, under whom the plaintiff claims, and who was active in procuring the confirmation, with notice of the existence of these deeds, we do not see any objection to their use for that purpose.

From what has been said, instructions numbered 5 and 6, given for the defendant, were erroneous, as the deeds and conveyances referred to in them were improperly before the jury, and the instructions assume that they were properly in evidence. Had the deeds been properly in evidence to the jury there would have been no objections to them.

The seventh instruction asked by the defendant and refused should have been given. Although the deeds from Hardy Ware to John Brinley and from John Brinley to James C. Smirl were improperly recorded as deeds, yet the 46th section of the act concerning evidence makes deeds, which have been proved or acknowledged but not according to law, impart notice to all persons of the contents of such deeds. The deed from Russell to Allen was executed and recorded after the deeds above referred to had been put upon the record.

Instruction number 8, given for the defendant, would be unobjectionable if it had in plain terms stated to the jury the deeds to which reference was made. There would be no objection to it if it related to the deeds read from the recorder’s transcript, and which had only been read to affect Russell with notice.

We see no objection to the ninth and tenth instructions given for the defendant.

There was no error in refusing the instruction asked by the plaintiff in relation to the effect of the sheriff’s deed to Clark. That deed was not acknowledged in court as the 45th section of the act of 1807 required; it was not effectual as án instrument until it was so acknowledged, and Clark acquired no interest in any land under it. The conveyance of lands by a sheriff on a sale under execution is a statutory power, and the statute must be pursued, otherwise the conveyance can not pass title. We have held that a sheriff’s deed not under seal would not convey a title; so also that a defective execution of a sheriff’s deed could not be aided by a court of equity. It seems that the party’s remedy in such a case would be under the 49th section of the act of 1807 concerning the practice at law. (Ter. Laws, p. 105.)

The terms of this confirmation are not like any that have fallen under our observation. The confirmation is to “Hardy Ware’s legal representatives it was filed, as has been stated, under the seventh section of the act of the 13th June, 1812, by William Russell, agent for the claimant, on the 12th November, 1812. Now Allen, the plaintiff, claims under a deed executed by Hardy Ware long after the claim was filed. As the claim was confirmed to Ware’s legal representatives, must not those representatives have existed at the time of filing the same ? Would one be a representative who obtained a deed from him in 1815 ? The act confirming the claim, it is true, did not pass until the 29th April, 1816 ; but must it not relate back and affect those only who were the representatives of Ware at the time of filing it ? The claim itself is founded on the pretension that at the date of the filing Ware had conveyed away all his interest in it. Did he not stand in relation to it as any other person no ways connected in interest ? If this is so, Allen claiming under Russell, who claimed under Ware by a deed executed in 1815, must show some agreement by Ware to convey made before the filing of the claim, otherwise he does not show himself a representative of Ware. If the deed of 1815 by Ware to Brinley and Clark was the execution of a previous valid agreement, Allen might be a representative of Ware, otherwise it is not seen how he' can claim to be one.

As the case is made out by this record, Allen can derive no advantage from the deed of the sheriff to Clark. He shows no conveyance from Clark. Clark himself, as has been shown, acquired no title by that deed; there is, therefore, no ground for any estoppel. It is besides the well established doctrine of this court that a vendee may deny the title of his vendor, and protect himself by an adverse title acquired from another. - ,

As the point in relation to the enurement of the confirmation was not made on the trial of the cause, and as it may be met by evidence, we are of the opinion that justice would be subserved by another trial. Both parties acted on the supposition, and their instructions assumed, that Ware might by a conveyance subsequent to the time of filing the claim for confirmation pass a title to a bona fide purchaser without notice of the previous conveyances by him.

Judge Napton concurs; Judge Richardson not sitting, having been of counsel.