author: WOODSON, P. J. GRAVES, J.

text:
    CITY OF JEFFERSON v. JOHN E. WELLS et al., Appellants.
    Division One,
    December 31, 1914.
    1. JUDGMENT: Conformity to Verdict: Condemnation: Verdict for Damages: Charged Against Abutting Property. Where in a suit by the city to condemn land for a public street, upon a trial by a jury upon exceptions to the commissioners’ report filed by one of the abutting landowners, the jury find by their verdict that the value of the land taken and damages to that not taken are $2750, the benefits to the residue of the land amount to $2000, and that his net damages are $750, for which net amount they return their verdict, a judgment which charges back against the land not taken the said $750 or any part of it, does not conform to the verdict, and should be set aside.
    2.--: -: -:--: -: Sec.' 9262, R. S. 1909: Constitutionality. Sec. 9262, R. S. 1909, pertaining to condemnation of land by cities of the third class for a public street, means that the value of the'land taken and the damages to the residue may be paid by special benefits to that not taken, due to the public improvements, and if the damages exceed the benefits such excess must either be paid by the city or the proceedings be dismissed. It cannot be taxed back against the land not taken as a further benefit. To do that would render the statute unconstitutional.

      Held, by GRAVES, J., that the statute does not contemplate the assessment of benefits for the purpose of a street improvement against land which has been taken or damaged in the actual establishment of the street.

      Held, also, that, if the city intends to exert its taxing power by requiring benefited property to pay the damages found in the condemnation proceeding, the statute contemplates a benefit district which shall include more land than that taken or damaged and sufficiently large to include all lands benefited, or at least enough to make the benefits equal to the damages, and in that view of it, it is not unconstitutional.
    8. CONDEMNATION: Reduction of Damages: Twice Assessed. Where the jury, in the condemnation proceeding to open a public street, takes into consideration by its verdict the peculiar benefits to the property not taken, in reduction of the abutting owner’s damages, there cannot thereafter be a further ascertainment of benefits, and no further assessment of damages in excess of such benefits can be made against the property. The owner’s damages in excess of benefits having by the jury’s verdict been ascertained to be a net sum, it would be to violate the provision of the Constitution declaring that private property cannot be taken or damaged for a public purpose without just compensation, to permit such excess to be charged back against the same land as a further benefit.
    4. APPEAL: Bill of Exceptions: No Motion for New Trial. Unless there is a motion for a new trial a bill of exceptions cannot be considered. There being no such motion, but only a motion in arrest of judgment, the only thing before the appellate court on appeal is the record proper.
    5. -: Withdrawal of Exceptions. A withdrawal of an offer to read to the jury the exceptions of a defendant to the commissioner’s report in a condemnation case is not a withdrawal of the exceptions themselves and hence not a withdrawal of a request for an assessment of damages by the jury.

      Appeal from Cole Circuit Court.- — Hon. J. G. Slate, Judge.
    Reversed and remanded.

      Perry S. Bader for appellants.
    (1) The judgment must conform to the verdict. It is a universal principle of law that the judgment must respond to and be based upon the verdict. In this case the verdict in unmistakable terms finds “that the net damages of said defendants is $750, for which said amount we return our verdict for said defendants. ’ ’ Upon that verdict defendants were entitled to a clear and unmistakable judgment to the effect that the city was entitled to defendants ’ land taken for the street upon the payment to said defendants or into court for them of the $750, and the court was unauthorized to tax three-fourths of this $750 “damages” against appellants’ remaining property, and its judgment doing so is not in conformity with the verdict. Hall v. Mullanphy, 16 Mo. App. 456; State v. Hesterly, 178 Mo. 44; Black on Judgments (2 Ed.), sec. 142; Ringle v. Freeholders, 56 N. J. L. 66; Secs. 9269, 9271, 9272, R. S. 1909; Cage v. Weineck, 148 111. App. 142; Haumueller v. Ackermann, 130 Mo. App. 387; Railroad v. Mathews, 87 Pac. (Mont.) 461; Sec. 1993, R. S. 1909. Where, in a condemnation case, benefits to the property affected by the improvement, are taken into consideration by the jury in their verdict, as the verdict clearly shows was done in this case, there can thereafter never be any further assessment of benefits in favor of the condemnor. 2 Lewis on Eminent Domain, sec. 704; Norfolk v. Chamberlain, 89 Ya. 196; Davis v. Newark, 54 N. J. L. 595; Coodrich v. Omaha, 10 Neb. 98; Leopold v. Chicago, 150 111. 598. A separate finding of damages and benefits was not error. Butte County v. Boydson, 64 Cal. 110; Beekman v. Jackson County, 180 Ore. 287; Water Co. v. Chambers, 2 Beas. (N. J.) 199; Packard v. Railroad, 54 N. J. L. 559. And that is the meaning of the statute. Secs. 9262, 9269, R. S. 1909. (2) If the statutes (Secs. 9269-9275, R. S. 1909) authorize the judgment in this case, then said statutes are violative of the clause of the State Constitution (Art. 2, sec. 21) declaring that “private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury . . . and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested;” and of that part of the U. S. Constitution (14th. Amendment, sec. 1) declaring that no State shall “deprive any person of life, liberty or property without due process of law, nor deny to any person within its protection the equal protection of the laws. ” ' If the value of defendants ’ land and improvements thereon taken by the city for the street is $2750, as found by the jury, that value can be paid only in benefits to their property not taken or in money, and if the value of those benefits will be $2000, reducing their net damages to $750, that net damage can be paid only in money, and to charge it back, as an assessment on defendants’ property not taken, in whole or in part, would be to take that much, at least, of their property without just compensation. Norwood v. Baker, 172 U. S. 269; Norfolk v. Chamberlain, 89 Va; 196; Detroit v. Daly, 68 Mich. 503; Bauman v. Ross, 167 U. S. 574; Bloomfield v. Latham, 143 111. 474; Scott v. Toledo, 1 L. R. A. 688; Bennett v. Woody, 137 Mo. 383; Matter of City of New York, 190 N. Y. 350; Railroad v. Brick Co., 198 Mo. 714; Seely v. Pittsburg,' 82 Pa. 360; French v. Paving Co., 181 U. S. 349. (3) The judgment is contradictory and self-destructive.

      H. J. Westimes and Pope & Lohmcm for respondent.
    (1) The motion in arrest of judgment was filed and determined before the judgment was entered, as appears by the record, and on the same day, same term and same page it appears that appellants filed their affidavit for an appeal and the same was granted when filed. The city had no opportunity after the verdict of the jury was confirmed to take any further steps until an appeal was prayed for and granted. Sec. 9271, R. S. 1909, provides for a final judgment in the case, and section 9272 provides that the city shall have a reasonable time, to be fixed by the court, after final judgment of the circuit court, and after the final determination of all appeals therefrom, to pay damages assessed for the taking or damaging of property. (2) The bill of exceptions does not appear from the abstract to have been allowed or signed by the 'judge, and therefore nothing is before the court except the record proper. Keaton v. Weber, 233 Mo. 691; Garth v. Caldwell, 72 Mo. 622; Alt v. Dines, 227 Mo. 418; Reno v. Fitzjarrell, 163 Mo. 411; Roberts v. Jones, 148 Mo. 368; Langstaff v. Webster Groves, 246 Mo. 223; Cooper v. Maloney, 162 Mo. 684; Bank v. Hutton, 224 Mo. 42; Buchanan v. Exposition Co., 245 Mo. 337. (3) The city can condemn private property for establishing or extending any street. R. S. 1909, sec. 9261. (4) The proceedings instituted by plaintiff were strictly in accordance with the statute. R. S. 1909, secs. 9262 et seq. (5) The exceptions filed by appellants as to the value of their property, the damages and benefits thereto as made by the commissioners were withdrawn and they cannot now complain when a greater amount has been awarded them by the court than reported by the commissioners. They can only complain of other objections contained in their exceptions. The only other complaint is as to the constitutionality of the law under which the proceeding is instituted, which was settled when appellants failed to except to the action of the court in affirming the acts of commissioners in all things except giving a jury trial to them to determine their damages, which they afterwards withdrew. The city has a right to dismiss its suit at any time before it has collected the benefits or taken possession of the property condemned, and thereupon be liable for costs. The judgment was not final until the happening of these matters. R. S. 1909, sec. 9268; Freeman on Judgments (4 Ed.), sec. 34. (6) The judgment was entered in accordance with Sec. 9269, R. S. 1909, but was not a final judgment. It was in the alternative, to take effect upon payment of the compensation assessed, and could have been avoided by plaintiff dismissing its suit. There could be no final judgment until the city had actually collected and received benefits assessed or taken possession of the property condemned. R. S. 1909, secs. 9268-9-70-71-72-73-74; R. S. 1909, sec. 2038; Freeman on Judgments (4 Ed.), secs. 33-4. (7) The final judgment in this proceeding would be the judgment and decree of the court that the title, in fee, and every interest in the land condemned be divested out of the owner and' vested in the city. R. S.'190*9, secs. 9271-2; R. S. 1909, sec. 2090; Baker v. St. Louis, 189 Mo. 375. (8) In order to determine the proper procedure to be had'in the case as well as the question as to what is a final judgment in the case, the whole statute, from section 9261 to section 9275, inclusive, must be read together. (9) Appellants should have appeared and raised the constitutional question when summoned. It was too late after the commissioners had performed their duties. The statute authorized the review of the report on written exceptions and authorized the court to “make such order as right and justice may require,” and to. order a new appraisement on good cause shown. The court orders a new appraisement by a jury under the supervision of the court and in all other things confirms the action of the commissioners, to which action of the court no exceptions were taken or saved and therefore the action of the court in overruling appellants’ exceptions as to constitutionality of the proceeding is not the subject of review.
   WOODSON, P. J.

This suit was instituted in the circuit court, of Cole county, by the city of Jefferson against John E. Wells et al., to condemn a strip of ground sixty feet wide, for street purposes, from the present eastern terminus of McCarty street to the eastern boundary of said city, being nine hundred and three feet in length.

The trial ultimately resulted in a judgment assessing certain damages and benefits in favor of the defendants, from which only the defendant Wells and his sister appealed.

The facts are undisputed, and are substantially stated by counsel for defendants in- the following language :

“Outlot No. 61 in the city of Jefferson consists of twenty acres of land. Its easterly line is the easterly corporate limits of the city, its northerly line is High street, its southerly line a road, or Miller street, and its westerly line is Benton street (or alley), which is thirty feet wide. The westerly half and the. southeast quarter of this outlot 61 — fifteen acres — belongs to appellants John E. Wells and 'Catherine Wells as cotenants; the remaining five acres, the northeast quarter, belong to defendant Frederick H. Zeitz, who does not appeal, and who abided by the report of the commissioners. Appellants’ fifteen acres in said out-lot have for many years been used as a home — years ago by appellants’ father, Judge Wells; later, by appellants ; and for four years by a tenant, Peter Bolton, a brother-in-law of John E. Wells. Four or five acres of appellants’ land is in orchard — apple trees — and the balance is used for garden, pasture and meadow, dwelling house, farm, etc.
“McCarty street, in Jefferson City, terminates on the east at the westerly line of this outlot No. 61. The purpose of this procedure is to extend that street easterly through that lot to the easterly extremity of the city, by taking a strip sixty feet wide almost through the middle of said outlot No. 61. There is a seven-room house, a barn and crib, a. cistern and twelve apple trees on the sixty-foot strip proposed to be taken as a street. It was not proposed by the proceeding to grade or pave the ground to be taken, or to construct sidewalks. It was proposed simply to condemn that sixty-foot strip for street purposes. The case is, therefore, one purely of eminent domain and taxation. (I suppose he means eminent domain and not taxation.)
“The city enacted an ordinance, No. 1124, January 20, 1913, establishing and extending McCarty street through said outlot No. 61 to the easterly line thereof, over land owned by defendants Wells and Zeitz, a distance of 903 feet, sixty feet wide; and on February 4, 1913, the city enacted another ordinance, creating a benefit district within which private property should be assessed to pay for the property to be appropriated and the damage sustained by the establishment of said street, and defining the limits of such district to be the whole of outlot No. 61, and nothing more.
“Thereafter the city filed its petition in the circuit court, basing its cause of action on said ordinances and sections 9261 to 9275, Revised Statutes 1909, and asking for the appointment of commissioners to ‘assess the damages which said owners may severally sustain by reason of the taking or damaging of such real estate by the city of Jefferson aforesaid for the purpose of extending and establishing McCarty street through, said outlot No. 61 as heretofore set out and to assess the property benefited by such improvements within the limits of said outlot No. 61 to pay therefor.’ The petition says that the northerly line of the sixty-foot strip to be appropriated was 433 feet from High street; it does not state the distance from the southerly line to Miller street. The said outlot was bounded on its. northerly side by High street, which was then and had been for many years an established street or public road.
“The commissioners reported that 13545 square feet of the property of F. H. Zeitz were appropriated for said street, and assessed his damages at $27 and charged his remaining property with $60 benefits. They found that 40635 square feet of the property of appellants John E. and Catherine Wells were appropriated for said proposed street, and ‘that their damage on account of appropriating said property and the improvements thereon, consisting of a dwelling-house, cistern, stable, fencing and from all other causes in connection with extending of said street through and over their property’ was $328, and finding the lands of these appellants, ‘consisting of fifteen acres, including the amount taken as a street, is benefited as a whole, the same being in one tract and owned by the same parties, in the sum of $295, the said sum of $295 is assessed as the amount that said tract of land ought to be charged with on account of bene■fits by reason of the opening of the street aforesaid for the purposes of paying the sum of $355, the total amount of damages found to have accrued to all of the lands lying in outlot No. 61 on account of the opening of the street through the same.’
“On the first day of the next regular term of the court, the defendants John E. and Catherine Wells filed their written exceptions to said report and asked for an appraisement by a jury. The report was confirmed as to Zeitz, who filed no exceptions, and the exceptions of these appellants were sustained as to the request for a jury to assess their damages, and a jury was ordered, qualified and sworn.
“The court held the burden of proof was on the defendants, and required them to open the case. Defendants’ counsel thereupon offered to read to the jury that part of the exceptions of John E. Wells and Catherine Wells in which is set forth the property attempted to be taken by this proceeding, and what appellants allege therein to be its value, and said request was denied by the court, and defendants were compelled to forego the right .to read their exceptions or any part thereof or any formal pleadings to the jury.
“The case proceeded to trial, and defendants’ evidence showed that there was on the sixty-foot strip of their ground to be taken for the street, a house worth from $800 to $1400, a barn and crib worth from $200 to $300, a cistern worth $75, twelve apple trees worth from $3.0 to $120, all belonging to these appellants ; that there was an orchard of four or five acres on appellants’ land and most of the balance was used for pasture or meadow, and that a fence to inclose the land after the opening of the street would cost $100. The witnesses placed the value of appellants’ land to be taken, exclusive of the improvements, at from $800 to $1800.”

The jury returned the following verdict (formal parts omitted):

“We, the jury in the above entitled cause find that the value of the ground of the defendants, John E. Wells and Catherine Wells, taken by the city of Jefferson for the prolongation of McCarty street through outlot No. 61, including the value of the house, bam, cistern and apple trees thereon, and including the cost of the construction of a new lawful fence along their remaining lands in said lot made necessary by the opening of said street, is $2750. We find that the value of the benefit to their remaining lands that will result from opening said street will he $2000. We therefore find that the net damages of said defendants is $750, for which net amount we return our verdict for said defendants.”

Upon this verdict of the jury the court rendered' the following judgment (formal parts omitted):

“Now again come the parties to this suit and the court being fully advised in the premises confirms the action of the commissioners in awarding damages to P. H. Zeitz in the sum of twenty-seven ($27) dollars, .and the verdict of the jury in awarding damages to John E. and Catherine Wells in the sum of seven hundred and fifty ($750) dollars.
“It is thereupon adjudged by the court that the plaintiff, the city of Jefferson, have and hold the property so to be taken for a street through outlot No. 61, of the city of Jefferson, by extending McCarty street, in said city from its present terminus at the westerly line of outlot 61, easterly through said outlot to the easterly line thereof, over, land owned by John Ei. Wells and Catherine Wells and Frederick H. Zeitz, a distance of 903 feet, said street to be 60 feet wide, parallel with High street, and northerly line of said street to be distant 433 feet from the southerly line of High street, as designated and marked out by Charles A. Winston, Thomas Kierns and A. J. Hoefer, commissioners of this court, the said proposed street being an extension and prolongation of McCarty street, easterly through said outlot 61 to the easterly line thereof, upon payment of said sum of $750 to the said John E. Wells and Catherine Wells and $27 to Frederick H. Zeitz, the same being the amount awarded him by the commissioners appointed by this court for damages to his property, said amounts being compensation to them in full for the damages by them severally sustained by reason of the taking and appropriation of their lands for the location of the aforesaid street.; and it is further considered and adjudged that the said plaintiff, the city of Jefferson aforesaid, recover the sum of $777, the amount of the damages so assessed for the opening of said street, against all of the property included in said outlot 61, except that part thereof appropriated for the street aforesaid, as specified in ordinances of said city, certified copies of which are filed in the office of the clerk of this court with the petition - of the plaintiff herein, numbered 1124, passed and approved on January 20, 1913, entitled 'An ordinance establishing and extending McCarty street in the city of Jefferson, from its present terminus at the westerly line of outlot No. 61 of said city, easterly through said outlot to the easterly line thereof, over lands owned by John E. Wells, Catherine Wells and Frederick H. Zeitz, a distance of 903 feet, said street to be 60 feet wide and parallel with High street as now established, the northerly line of said street to be distant 433 feet from the southerly line of High street,’ and ordinance numbered 1133, passed and approved February 4, 1913, entitled 'An ordinance defining the limits within which private property shall be assessed to pay for the property necessary to be appropriated and the damage thereby sustained, to open and extend McCarty street in the city of Jefferson, from its present terminus at the westerly line of outlot No. 61 of said city, easterly through the said outlot to the easterly line thereof, over land owned by John E. Wells, Catherine Wells and Frederick H. Zeitz, a distance of 903 feet, said street to be 60 feet wide, parallel with High street, as now established, the northerly line of said street to be distant 433 feet from the southerly line of’ High street, as ordained by ordinance No. 1124, passed and approved January 20, 1913, and also fixing the time and mode of payment of such assessment and the penalty for failure to pay the same when due, as required by section 9262 of the Revised Statutes of Missouri of 1909,’ and that the sum of $777 he charged as a lien thereon and collected therefrom, as provided for under the provisions of said ordinances; and it further appearing to the court that under the ordinances of the city of Jefferson aforesaid, under which this proceeding was instituted, all of the land included in said outlot 61 is owned hy the said Frederick H. Zeitz, John • E. Wells and Catherine Wells, and that the land of the said Frederick H. Zeitz ought to be charged with one-fourth of the amount of damages so assessed and the lands of the said John E. and Catherine Wells, hy them owned as tenants in common, ought to be charged with three-fourths of the amount of suck damages, and that the amount that ought to he charged against the said lands of the said Zeitz is $194.25 and that the amount that ought to he charged against the lands of the said John E. Wells and Catherine Wells is $582.75.
“It is therefore further adjudged that the said city of Jefferson recover the said sum of $194.25 against the property of said Frederick H. Zeitz described as the northeasterly quarter of outlot 61, of the city of Jefferson, in Cole county, Missouri, and that the said city of Jefferson recover the said sum of $582.75 against the property of the said John E. Wells and Catherine Wells described as the southerly half and northwesterly quarter of said outlot 61, except the parts of each tract included within the street aforesaid, to pay the compensation for the damages sustained hy the said owners of said property by reason of the location of said street, and that said amounts be charged as special liens upon the said tracts of land against which this judgment is rendered, and if the said judgments against the said tracts of land are not paid within sixty days from the date hereof that a penalty of ten per cent he added thereto for non-payment thereof in each case, and that each of said judgments shall hear interest at the rate of eight per cent per annum after sixty days from date of this'judgment until paid; and it is further ordered that if payment be not made within sixty days from this date that a special execution issue from the office of the clerk of this court against the property of each of said parties as herein-before set out and described, directed to the sheriff of Cole county, Missouri, commanding him to levy and collect the amounts charged against each of said pieces of property, together with the penalty and interest as herein provided, out of said property, by levy thereon and sale thereof as in ordinary cases of special execution; and it is further ordered and adjudged that all of the costs that have accrued in this case up to and including the rendition of the judgment herein be taxed against the plaintiff and that execution may issue against it therefor.”

The defendants in due time filed a motion in arrest of judgment, but no motion for a new trial was filed.

Defendants also filed a bill of exceptions; and duly appealed the cause to this court.

I. Counsel for appellant first asks for a reversal of the judgment rendered herein, for the reason stated, that it does not conform to the verdict of the jury.

The verdict of the jury awarded to appellants Wells, the sum of $2750 damages, and the sum of $2000 benefits, which left a net sum of $750 damages due Wells; and the commissioners awarded $27 damages •to Zeitz and $60 benefits.

The court instead of entering judgment in favor of Wells for said $750, did, under the authority of ordinance No. 1133 of the city of Jefferson, add together the damages assessed in favor of Wells and Zeitz, making $777, and assessed three-fourths of that amount, $582.75, back and against Wells’s, three-fourths of said lot sixty-one; and the other one-fourth of said $777, which was $194.25, .back and against Zeitz’s one-fourth, of said lot, both sums to be due in sixty days, and if not then paid an execution was ordered to issue from the office of the circuit clerk against both of said tracts in said lot sixty-one, direct- • ing the sheriff to sell each and collect the respective amounts assessed against each of said pieces of property.

If the judgment in favor of Wells bad followed the verdict, the judgment would have been in bis fa- . vor for said $750; and bad the judgment followed the award of the commissioners in favor of Zeitz, the judgment would have been for $33 benefits entered against bis land, the difference between the damages and benefits assessed against bis tract.

According to the law announced in the cases to be presently mentioned, the judgment here rendered is erroneous in that it does not follow the verdict of the jury, without that error is cured by virtue of section 9262, Revised Statutes 1909, which will be considered in the next paragraph of this opinion.

The cases above referred to are: Hall v. Mullanphy Planing Mill Co., 16 Mo. App. 454; State v. Hesterly, 178 Mo. 43; Haumueller v. Ackermann, 130 Mo. App. 387; Black on Judgments (2 Ed.), sec. 142; Ringle v. Freeholders, 56 N. J. L. 661, l. c. 666; Secs. 9269 to 9272, R. S. 1909.

II. Counsel for the city insist that the judgment of the circuit court was authorized and is in conformity to the provisions of said ordinance No. 1133, which it is claimed is based upon and authorized by sections 9262 to 9269, both inclusive, of Revised Statutes 1909, and especially the first mentioned, and consequently it is a valid Said section 9262, in so far as is here material, reads as follows: judgment.

“Whenever the mayor and board of aldermen shall provide by ordinance for establishing, opening, widening, extending or altering any street, avenue, alley, wharf, creek, river, water course, market place, public park, public squares, or for establishing a market house, or for taking private property for any other necessary public purpose, and it shall become necessary for that purpose to take or damage private property, the mayor and board of aldermen shall, by ordinance, define the limits within which private property shall be assessed to pay for such improvements, and the time and mode of payment of such assessment and the penalty for failure to pay the same when due. The city shall the: eupon apply to the circuit court of the county in which such city is located, or to the circuit judge of that judicial circuit in vacation, by petition, setting forth the use for which said land is to be taken and dedicated; the names of the owners of the several lots or parcels of land, if known, or if unknown, a correct description of the parcels whose owners are unknown, and praying the appointment of three disinterested commissioners, freeholders of property in the county where such city is situated, to assess the damage which said owners may severally sustain by reason of the taking or damaging of such real estate by the city, and to assess the property benefited by such improvements within the limits to pay therefor, which said petition and a certified copy of said ordinance shall be filed in the office of the clerk of the circuit court of said county, and to which petition the known owners of all such lots or parcels of land to be taken or damaged by the reason of the proposed improvement shall be made parties defendant by name. ’ ’

Counsel for appellants insist that the meaning of this statute is, that the benefit district provided for therein must be such that the benefits to be assessed against property to be benefited by the improvements proposed, must equal or exceed the amount of the damages that will be awarded, to be used as compensation for the land to be taken for street purposes and the damages that will be dome thereby to the remainder of the property not taken, and that if said benefits do not equal said damages, then the city must either pay the deficiency out of its own treasury so as to make the two equal; or the city might increase or decrease the boundaries of the district so that the benefits to property would equal the damages done thereto; or dismiss the proceeding’s as is provided for by said section 9268. •

If this is not true, then the city with design or innocently, for that matter, may order a street opened, and establish a benefit district which would include only such property as would be damaged by the establishment of the street, and then assess the damages in one act, and in the next, assess sufficient benefits against the same property to pay the damages done thereto. The. mere statement of the proposition reveals the absurdity thereof, if the mandates of the State and Federal Constitutions are to be obeyed in such proceedings.

According to the appellants’ construction of said section 9262, the benefits assessed against the benefited property would pay the. damages assessed in favor of the damaged property, or if benefits are not equal to the damages, then the city must make up the deficiency or dismiss the proceedings. In my opinion, the contention of counsel for appellants is clearly the meaning of this statute.

If this is not its meaning, but the construction placed upon it by counsel for respondent is correct, then clearly the statute is unconstitutional, null and void, for it both takes and damages appellants’ property without just compensation, for the verdict of the jury shows that appellants’ net damages over and above all benefits, is $750. And instead of the city paying appellants that sum, as required by section 21 of article 2 of the Constitution of Missouri, and section 1 of the 14th Amendment of the Constitution of the United States, the judgment of the circuit court charged back to or assessed three-fourths of that damage, which was $582.75, against the remainder of their lands, and the other one-fourth thereof, which was $194.25, against the lands of Zeitz, which according to the judgment must be paid into the city treasury within sixty days from the date of the rendition of the judgment or execution will issue thereon.

Such is “just compensation” with a, vengeance, within the meaning of the State and Federal Constitutions.

It not only wiped out the $750, the net damages the jury awarded appellants, without paying them one •cent of it, but upon the other hand adjudged the $582.75 against them, or rather against the remainder of their lands, which with eight per cent interest they must pay in sixty days. In other words, appellants have lost said $750 damages and must pay in addition the $582.75, which sums added together equal $1332.75, the net damages they have sustained over and above the $2000 benefits assessed in their favor. Or in short, the city has taken appellants’ land, worth $2750, and has a judgment against them for $582.75, and they have received not a wrapping of a finger in return, except the $2000 benefits assessed against the remainder of their land.

Appellants would have been far better off had they made a voluntary dedication of the land to the city for street purposes.

This judgment is so palpably violative of both the State and Federal Constitutions, it seems that it would be useless to cite authorities in support thereof. Nevertheless, the following authorities are in point: 2 Lewis on Eminent Domain (3 Ed.), sec. 704; City of Norfolk v. Chamberlain, 89 Va. 196; Davis v. City of Newark, 54 N. J. L. 595; Goodrich v. Omaha, 10 Neb. 98; and Leopold v. City of Chicago, 150 Ill. 568.

Mr. Lewis, in his excellent work on Elminent Domain (3 Ed.), sec. 704, in so far as applicable to this case says:

“It has been held in a number of cases that where part of a lot is taken and the remainder is found to be damaged, such remainder cannot be assessed with benefits for the same improvement in a subsequent proceeding. The first adjudication that the property has been damaged is held to conclude both parties while it stands. . . . An alley was opened through the middle of two lots. Damages were awarded for the parts taken and for injury to the parts not taken. Afterwards it was proposed to levy a special tax upon the parts not taken to pay the damages awarded. It was held that tbis would amount to a taking without compensation, and the proceeding for the special tax was dismissed. ... If such a course is upheld the owner would seemingly be compelled to pay for the privilege of having his land taken from him and devoted to public use.”

In the case of the City of Norfolk v. Chamberlain, 89 Ya. 196, the city undertook to condemn certain property of defendant for street purposes. The facts were: The defendant owned a vacant lot, fronting twenty-three feet on Granby street and thirty-nine feet on Plume street. The city proposed to widen Plume street ten feet. The commissioners reported that the defendant’s ten feet of the lot fronting on Granby street, running back to Plume street thirty-nine feet had to be taken and that the defendant was entitled to $1200 for the land taken and for the damages done to the residue of the lot, over and above the benefits, etc. The city paid said $1200; and about five months later the city assessed a special tax of $1500 against the residue of the lot for the peculiar benefits done it by widening the street, as above mentioned. Upon these facts the Supreme Court of Virginia held the tax void.

To the same effect are the cases of Davis v. City of Newark, supra, Goodrich v. Omaha, supra, and Leopold v. City of Chicago, supra.

In principle there is no difference between those cases and the one at bar; and the principal difference in fact is, that in those cases, if I remember correctly, the benefits which were attempted to be assessed took place some time after the damages were awarded, and in different proceedings, while here both were done at the same time and in the same proceeding.

III. Counsel for respondent insist that the record does not show that the bill of exceptions is properly before the court. Should that insistence be conceded to be true, it would not change the result, for the reason that we cannot consider a bill of exception because no motion for a new trial was filed. The only thing that is have copied in the statement of the case. It shows upon its face all of the facts upon which this opinion is based, and it is therefore not necessary to resort to matters of exceptions in disposing of the case. properly here is the record proper, much of which I

IV. Counsel for respondent finally insist that appellants withdrew their exceptions filed to the report of the commissioners and therefore the question of damages and benefits is not properly before this court. After a careful investigation of that record, we are clearly of the opinion that counsel are mistaken in that regard.

The facts are, that when the trial began counsel for appellants offered to read to the jury the exceptions they had filed to the report of the commissioners, which I suppose was to present to the jury the issues they were called upon to try, there being no pleading in the case which would enlighten the jury as to what the controversy between the parties was. Upon objection being made by counsel for respondent to the offer of counsel for appellants to read said exceptions to the jury, the court excluded the offer and instead of excepting to the ruling of the court, counsel for appellants withdrew the offer to read the exceptions; and not their exceptions to the report of the commissioners filed with the cause.

For the reasons stated, the judgment of the circuit court is reversed and the cause remanded for a new trial.

All concur; Graves, J., in separate opinion.

GRAVES, J.

(concurring).- — I concur in the opinion of our brother Woodson. In my judgment the whole controversy arises from the misconception of the statute, section 9262. I do not believe that this statute contemplates the assessment of benefits for the purpose of the street improvement against land which has been taken or damaged in the actual establishment of the street. The benefits as to such tracts of land are fully considered in the condemnation branch of the proceeding, and should not again be considered in the taxing portion of the proceeding. All these proceedings are dual in character. We have necessarily a condemnation branch of the proceeding, and if the damages are to be paid by benefits to other property, we have a taxing branch of the proceeding. [St. Louis v. Brinckwirth, 204 Mo. 280.]

In my judgment this statute contemplates the fixing of a benefit district which shall include more lands than the lands actually taken or damaged in the condemnation branch of the proceeding, if the city is going to exert its taxing power by requiring benefited property to pay the damages found in the condemnation branch of the proceeding. Given this construetion the statute does no violence to constitutional prohibitions. From this view of the situation my concurrence necessarily follows.


source: Caselaw Access Project

author: PARIS, J.

license: Public Domain

text:
    JOSEPH MONTZ v. MICHAEL G. MORAN, Appellant.
    Division Two,
    January 4, 1915.
    1. JUDGMENT BY DEFAULT: Motion for New Trial: Set Aside and Nunc Pro Tunc Judgment. Defendant took leave to plead at the April term to plaintiff’s bill to cancel a deed, but failing to do so, a judgment by default, upon its face final, was rendered against him at the September term. Within four days thereafter he filed a motion for a new trial and in arrest, and the cause was continued, specifically upon said motion for new trial. At the January term the court set aside the judgment entered at the September term, on the ground that a final judgment rendered at the same term at which the default was noted, was prematurely entered. Thereupon said motions were overruled, and an interlocutory judgment by default, mine pro tuno as of the September term, was entered. Thereafter, at said January term the court heard evidence on the part of the plaintiff, and entered judgment for him decreeing the relief prayed for. Defendant, after the September judgment was set aside and before the final judgment in January was entered, asked no leave to plead, though presumptively present. Held, that the final judgment entered at the January term is not a nunc pro tunc final judgment entered at that term as of and for the September term, but there was a nil dicit judgment entered at the January term nuno pro tunc as of and for the September term, and thereafter a final judgment entered at the January ternr, and this last judgment cannot be set aside. Defendant’s legal duty was to file at the September term .a motion to set aside the default judgment, instead of his untimely and useless motion for a new trial; but as the case was continued on that motion, and had the effect of postponing the finality of the judgment until the next term, and then of having that set aside and a proper judgment of default entered at that term as of the September term, he cannot complain; and, if it was error, in response to such a motion, to set aside the final judgment entered in September, and in January to enter a proper one as of that term, it was an error of the class the statute (Sec. 2082, R. S. 1909) declares is not reversible. Furthermore, defendant’s failure to move to set aside the nunc pro tunc default judgment after it was entered and to ask leave to plead, is of deep-going significance.
    2. -: Corrected Nunc Pro Tunc: Error of Clerk. Where a judgment is rendered which the law does not warrant (for instance, where a final judgment is entered at a term at which the law permits only a default judgment) and sufficient data are present to warrant a correction thereof, such judgment may be corrected nunc pro tunc at a succeeding term, since the law deems the unwarranted judgment that of the clerk, and not that of the court.
    3. -: Appearance and Pleading: Trial Term: Final Judgment. Fifteen days’ service in any case or in any county is sufficient to require a defendant to appear and plead; all cases of whatever kind, in counties having over forty thousand inhabitants, are triable on fifteen days’ service, and default may be noted and final judgment entered at the return term for failure to plead on or before the third day, unless further time be given by the court; in counties having forty thousand or less, all actions on notes, bonds and bills of exchange, and suits on accounts and accounts stated where there has been personal service of such account with the petition annexed, are triable on fifteen days’ service, at the return term; and all cases of whatever kind, wherein thirty days’ service has been had on defendant, are triable at the return term, in all . counties; and final judgments by default or nil dicit can be taken at the return term in all sorts of actions in which there has .been full thirty days’ service, in all counties having forty thousand inhabitants or less.
    Appeal from Clinton Circuit Court. — Eon. A. D. Burnes, Judge.
    Affibmbd..

      E. M. Bwarts for appellant.
    The court having rendered a premature judgment at the September, 1911, term of court, it had no authority at a subsequent term to set aside that judgment and render another and an entirely different judgment. Courts at a subsequent term cannot cor-rect the mistakes of the judge or render a judgment different from that actually rendered at the previous term. Burnsiae v. Wand, 170 Mo. 543. “A court cannot at a subsequent term change its- judgment to one which it neither rendered nor intended to render.” Ross v. Ross, 83 Mo. 100. “As a general rule no final judgment can.be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors.” Freeman on Judgments (3 Ed.), sec. 69. Clerical errors may, of course, always be corrected, but judicial errors at a subsequent term cannot. The distinction between clerical and judicial errors is clearly discussed by Thompson, J., in Evans v. Fisher, 26 Mo. App. 541. The judgment entered in the record is presumed to be the one rendered and cannot be corrected or changed until the record, the clerk’s minutes, judge’s docket or some other paper in the cause show to a reasonable degree of absolute certainty that another and different judgment was rendered than the one entered. That the judgment entered is erroneous, is not sufficient to authorize its change, and the issue is not the correctness of a judgment, but whether the entered judgment was the rendered judgment. Burns v. Sullivan, 90 Mo. App-. 1. The last above well considered case collates numerous cases, considers and distinguishes them. It will never do to say that a judgment entered is not the judgment rendered merely because it ought not to have been rendered. Bohn Bros. v. Stivers, 75 Mo. App. 291; State v. Jeffors, 64 Mo. 378; Wooldridge v. Quinn, 70 Mo. 371; Ross v. Ross, 83 Mo. 100; Evans v. Fisher, 26 Mo. App. 541. The court says that the judgment “was prematurely entered,” and then proceeded to set the same aside, hold it for naught, and then instanter enters up another and an entirely different judgment than that theretofore entered. That in effect sustained the motion for new trial. There is no pretense that it was the mistake of the clerk, but the judgment entered was the judgment actually rendered by the court. Therefore, in this case the court rendered one judgment at one term of court, set the same aside at a subsequent term and rendered another and entirely different judgment, making two judgments in one case on one trial. This we submit the court could not do. The court may correct a judgment entry so as to make the judgment that which the .court in fact rendered, but on the other hand if the court renders a judgment which it intended to render, it has no authority at a subsequent term to change said judgment by rendering one that was not in fact rendered. Davison v. Davison, 207 Mo. 702.

      W. M. Fitch for respondent.
   PARIS, J.

Plaintiff sued defendant in equity to cancel a deed. Defendant took leave to plead at the April term, 1911, but failing to do so a judgment by default, upon its face final, was rendered against him at the September term, 1911, the same being the term at which the default was entered. [To distinguish it we will refer to this as the September judgment.]

At this September term and within four days after the rendition of the judgment aforesaid, defendant came in and filed a motion for a new trial and a motion in arrest of judgment. The case was then continued, specifically because of the pendency of said motion for a new trial, with the motion in arrest also pending, and no further action was taken till the January term, 1912, at which time the court took up the defendant’s motion for a new trial and in the presence of defendant and his counsel, set aside the final judgment rendered by the court at the September term, upon the ground inferably (though the reason is not clear), that a final judgment rendered at the same term at which the default was noted, was, in this kind of case, prematurely entered. Thereupon the court overruled the defendant’s said motions for a new trial and in arrest, and thereafter at the said January term, entered an interlocutory judgment by default, mmc pro tunc, as of the September term, 1911. Following all this and at the same- term, the court heard evidence in the case on the part of plaintiff, and entered judgment (which we may, to distinguish the two judgments and for brevity, call the January judgment), for plaintiff, decreeing to him the relief for which he prayed. Defendant, though presumptively still present, both in person and by counsel, asked no leave to plead, or otherwise raised his voice, after the September judgment was set aside and before the January judgment was rendered, hut throughout all these proceedings stood mute.

Defendant thereupon appealed, taking time till the next term of the court nisi to file his bill of exceptions, but neglecting so to do in the time given to him, or at any other time, is here now solely upon a bare and most meager record proper.

OPINION.

After the court nisi had set aside the September judgment and overruled defendant’s said motions and entered the nunc pro tunc order of default, as also the January judgment, he took this appeal, without having in the interim filed, or asked leave to file, any pleading, or to be heard in any way, and without filing any new motion for a new trial or any other motion of any kind.

Nevertheless, defendant contends that the bare record of the two judgments, which is practically all there is before us, shows that the trial court entered a final judgment by default at the return term, without the antecedent formality of noting a default and entering thereon an interlocutory decree. He further contends that the final judgment entered at the January term, 1912, is a nunc pro time final judgment entered in January as of and for the September term, 1911, and that these things are so fatally erroneous as to constitute reversible error upon the record, without more.

We do not so read the orders or the judgment entered by the court at the said January term. We think on the contrary, that they fairly, but concededly not clearly, show that the learned trial judge, deeming the final judgment “which was written up” and “spread upon the records” by the clerk at the return term in September, erroneous in that it was premature, set aside the said final judgment and noted a default and entered an interlocutory decree, nunc pro tunc as of the September term, 1911, and thereupon as the record before us, as we read it, solemnly recites, proceeded to hear the plaintiff’s evidence and then entered the final January judgment here appealed from.

Defendant’s plain legal duty was to file at the September term his motion to set aside the default judgment taken against him, as the statute provides. [Sec. 2094, R. S. 1909.] Instead of this he filed untimely (if we test the matter by his own position), and therefore useless, motions for a new trial and in arrest. We are of course compelled to name these motions as the defendant names them; since they are not before us.

It was upon defendant’s motion for a new trial that the case was continued. This motion had the effect of justifying in law the continuance of a case which otherwise (a final, instead of an interlocutory judgment having been rendered) would have been utterly at an end when the September term adjourned. The said motion of defendant suspended or held up the finality of the judgment till the disposition of the motion (McGurry v. Wall, 122 Mo. 614; Walter v. Scofield, 167 Mo. 537; Guinan v. Donnell, 201 Mo. 173), and on such a state of facts a setting aside of the September judgment at the January term, was tantamount to setting such judgment aside at the term at which it was entered, since the pending motion for a new trial had the effect of thus tacking the two terms together, so far as concerns this case.

The question of the right to note default and render final judgment in this kind of an action in a county having less .than forty thousand inhabitants, is not directly in the case, though involved indirectly. Por the error complained of, if found to be such, is error regardless of its prematurity vel non; because if the September judgment was not premature, but absolutely good, it yet was set aside, and ás a final judgment thereupon fell out of the case. But if it was good and binding upon defendant as rendered, he having-kept alive between terms the court’s dominion over it, we ought not to reverse this case, for surely it would then fall into the category of cases which we are by statute forbidden to reverse for that the error is not materially hurtful to appellant (Sec. 2082, R. S. 1909); furthermore, it would fall among that class of cases wherein judgment warranted by the facts having been rendered against defendant, the mere bare form of it interested him no more (Dixon v. Hunter, 204 Mo. 382; Nave v. Todd, 83 Mo. l. c. 606; Emery v. Whit-well, 6 Mich. l. c. 492); if the court was not warranted in rendering a judgment nil dicit (as the one here is, though called a default judgment in the record) upon the facts at the return term, and if the September judgment was premature it could have been set aside at the succeeding January term, 1912, even upon a motion filed at that term. [Dougherty v. St. Vincent’s College, 53 Mo. 579; Nave v. Todd, 83 Mo. l. c. 606; Harbor v. Railroad, 32 Mo. 423; Sims v. Gray, 66 Mo. 613.] Likewise, manifestly and for the identical reasons moving the court in the Dougherty case, supra, the premature and improvident judgment, if it was not the one allowed to be entered by statute or law, could yet have eked out from its own contents and statements the basis for the nunc pro tunc order made. Where a judgment is rendered which the law does not warrant and data be present sufficient in law to warrant correction thereof, such a judgment may be corrected mmc pro time; since the law deems the prohibited judgment that of the clerk and not that of the court. [Burnside v. Wand, 170 Mo. 531; Railroad v. Mockbee, 63 Mo. 348; Saunders v. Scott, 132 Mo. App. l. c. 213; Burns v. Sullivan, 90 Mo. App. l. c. 5; Sperling v. Stubblefield, 105 Mo. App. l. c. 494.]

As forecast above the reason for this anomaly and apparent contradiction of the general rule (which is that orders mmc pro tunc go to correct clerical misprisions only, and not judicial errors), is not far to seek; for, if a judgment be rendered which is against the law or a statute, and thereon a timely writ of error be taken, any appellate court would inevitably set aside such unlawful judgment. Why then compel a litigant to come to an appellate court to get that done which can as well be done by the trial court without the time and expense of a writ of error? If, however, the judgment be one which the court may lawfully render, the reason fails and of course the rule fails.

When we consider the object of the various amendments of section 1799, Revised Statutes 1909, which fixes the time of pleading (See collation and discussion of these amendments in Miller v. Gordon, 96 Mo. App. 395), and read this section in connection with those infra, providing for service of summons and orders of publication (Sections 1757, 1758, 1777), we see that by the latter sections fifteen days’ service is sufficient in any case or in any county to require defendant to appear and plead. Then turning back again to section 1799 we note that all cases of whatever kind in counties having over forty thousand inhabitants are triable on fifteen days’ service, and that default may be noted and final judgment rendered at tbe return term for failure to plead on tbe third day, unless further time be given by the court. We note further in the history of said section 1799 (as it stood before the amendment of 1889) that in counties having forty thousand or less inhabitants (in which category we judicially notice Clinton county falls) all actions on notes, bonds and bill of exchange, were triable on fifteen days’ service, i. e., at the return term. [Miller v. Gordon, supra; Reed Bros. v. Nicholson, 158 Mo. 624.] The amendment of 1889 (Sec. 2042, R. S. 1889) put another class of cases into the list of those triable in the latter counties, on fifteen days’ service, to-wit, suits on account and account stated where personal service of such account with the petition annexed, was had on the defendant. Likewise this amendment made all cases of whatever hind, wherein service was had on defendant as much as thirty days before the beginning of the term, triable at the return term. Thus making pleading required in all actions and in all counties on fifteen days’ service; and making actions on accounts, etc., bonds, bills of exchange and notes, triable in all counties on fifteen days’ service. And making all actions in all counties, including those having forty thousand or less inhabitants, triable at the return term when full thirty days’ service is had before the return day. If we turn now to the statutes which provide for the nature of the judgment which the court is empowered to enter in the classes of actions and periods of service above discussed, we note that by section 2093, Revised Statutes 1909, it is provided that: “If the defendant shall fail to file his answer or other pleading within the time prescribed by law ... an interlocutory judgment shall be given against him by default.” Section 2098 provides that in case of an interlocutory judgment by default nil dicit (confusing manifestly the distinction existing), confession, or upon an issue of law in any action (in substance) wherein the amount due is definitely ascertainable, the court shall assess the damages “and final judgment shall be given thereon.” Section 2099 is as follows:

“In all cases of interlocutory judgments not provided for in the, two preceding sections, the plaintiff may, if he demand it, have a jury to assess his damages. If no jury be demanded the court shall assess the damages, or give the other relief asked in the petition, and final judgment shall be given thereon.”

Therefore, notwithstanding much of obscurity due to faulty construction and loose grammar is to be found in section 1799, we think it plain that the intent of the Legislature has been to allow final judgments by default or nil dicit on full thirty days’ service, to be taken in all sorts of actions in counties having forty thousand inhabitants or less. We do not think this has been doubted among the bar, since the amendment of 1889. It may not have been doubted here even. We cannot ascertain from the record whether or not this point was in question. But however all these things may be, the motion for a new trial of defendant kept the finality of the September judgment suspended so that it could be dealt with by the court at the January term just as if it had been rendered at that term. If this were not so, no motion for a new trial could ever be continued from one term to another. For as soon as the term at which a judgment was rendered had lapsed, the judgment would become irrevocably final, even as “the laws of the Medes and the Persians.” The finality of the September judgment therefore being suspended, the court had the right at a subsequent term to set it aside.

So far as the record shows defendant stood mute after the September judgment was set aside, and both before and after the default was noted by the mmc pro tunc order. Defendant neither asked leave to plead before such order was made, nor filed thereafter any motion to set such order and default aside before it was made final. [Sec. 2094, R. S. 1909.] It might well be that it was anomalous, if not error, to take up a motion for a new trial, set aside the judgment at which the said motion was directed, and then overrule such motion. But of this we cannot judge, and upon it we may not rule, for the motion was not preserved and is not in any way before us for review. If defendant had shown any diligence after the court set aside the September judgment; if he had asked leave to plead and such leave had been refused; if he had filed any motion showing any good cause to set aside the entry of default, we should feel that we ought to reverse this case for this irregularity. But since the learned trial judge, deeming a mistake had been made, did all that lay in his power to correct such mistake; since withal defendant stood by and stood mute, and since, from all we can gather the judgment was a righteous one, 'we ‘ think that the defendant waived all of the technical errors of which he complains, and furthermore that those errors fall into the category of such as are not by statute reversible. [Sec. 2082, R. S. 1909.] Let the case be affirmed.

Walker, P. J., and Brown, J., concur.


author: EOY, C. PEE CUEIAM.

text:
    THE STATE v. DAVID WADE, Appellant.
    Division Two,
    January 4, 1915.
    RECORD PROPER: No Showing of Motion for New Trial: Bill of Exceptions not Considered. When the record proper makes no mention of the filing or overruling of a motion for a new trial, the Supreme Court cannot consider the hill of exceptions, and finding no error in the record proper the judgment will he affirmed.
    Appeal from Newton Circuit Court. — Hon. B. G. Thurman, Judge.

      Affirmed.

      M. E. Benton and George Eubbert for appellant.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
   EOY, C.

A jury convicted defendant of taking Elsie Brown, a female person under eighteen years of age, from her father, Harry E. Brown, in legal charge of the person of said Elsie, without the father’s consent, for purposes of concubinage. His punishment was fixed at two years in the penitentiary.

Hon. Carr McNatt, the regular judge, was disqualified by defendant’s application for a change of venue from him, and Judge B. G. Thurman of the 26th Judicial Circuit was called in and tried the case.

The record proper makes no mention of the filing or overruling of the motion for a new trial, and for that reason we are without authority to pass upon matters contained in the bill of exceptions, but are confined to the record proper. It was so held by Faris, J., in the recent case of State v. Scobee, 255 Mo. 270.

The information was filed September 20,1913, and is sufficient in form and substance. We have carefully examined the record proper and find no error therein.

The judgment is affirmed.

Williams, G., concurs.

PEE CUEIAM.

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

All.the judges concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. MAX L. SIMENSON, Appellant.
    Division Two,
    January 4, 1915.
    1. INSTRUCTIONS: Defendant’s Statements Out of Court: Whether Voluntarily Made. A proper instruction in a criminal trial on the weight as evidence of the defendant’s statements out of court is approved, and the question whether or not they were voluntary need not be embodied therein.
    2. -: -: -: Collateral Matter. Whether or not statements made out of court by a defendant in a criminal trial were voluntary, is a collateral matter upon which the court is not bound to instruct unless so requested by the defendant.
    3. SUPPLEMENTARY MOTION FOR NEW TRIAL: Filed Out of Time. A supplementary motion for a new trial in a criminal case filed five days after verdict is invalid as filed out of time.
    4. RECEIVING STOLEN GOODS: Verdict: Knowing Them “to be Stolen.” The use of the words “knowing them to be stolen,” instead of “to have been stolen,” in a verdict finding the defendant guilty of receiving stolen goods, does not invalidate the verdict.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Aeeirmeb.

      William E. Fish and Boy E. Fish for appellant.

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

Defendant was convicted of receiving stolen g'oods, knowing that they had been stolen, and his punishment was fixed by the jury at two years in the penitentiary.

During the night of January 10, 1913, about 56 pairs of trousers and 36 coats were stolen from the factory of the Schwab Clothing Company at Broadway and Hickory street in St. Louis. About the 3d or 4th of February following, those goods were found in the place of business of the defendant near Broadway and Chouteau avenue. The defendant was a merchant tailor, with several men in his employ. "When found most of the goods were out of sight; some were hidden in an old telescope valise, some were in the bottom of a large show case covered with cloths; a few were hanging in sight of the casual observer.

Officer Archey testified that when he went to defendant’s place of business he told defendant that he (witness) had information that he (defendant) had there in his place some goods stolen from Schwab Clothing Company, and that defendant answered that he didn’t have any made up clothes of any kind; didn’t handle suits. He further testified that upon making search of defendant’s place the goods were found, and that he then asked defendant where he got the goods, to which defendant answered that some young fellow came round and he got them off of him, that he (defendant) said that he thought the man owned the goods and he bought them. Defendant was then placed under arrest.

Officer Amrein testified that defendant when asked whether he had such goods said that he did not have them, that his was a repair shop and that he didn’t have any suits of clothing at all.

Edward Allen, a tinner, testified that he went into defendant’s place in January, 1913, in the morning, and that there was a man there with a box of clothing which he sold to the defendant, giving the defendant a piece of white paper and that defendant paid the man some money.

Defendant testified that he had been a merchant tailor in St. Louis fourteen years and in the clothing business two years, a kind of a jobber. He testified that he had bought probably a dozen lots of clothing at different times; that on January 11; 1913, he bought of B. Shrinder the goods that were found in his shop; that Shrinder had a tailor shop at Seventh and Franklin, third floor, and made clothes for defendant for two or three years. He testified that he did not know what had become of Shrinder. The State did not introduce any evidence as to Shrinder or his business'.

Mr. Bavin testified that about three years before the trial he sold defendant a lo.t of pants amounting to $225.

Defendant testified that he got a bill of sale for the goods bought by him from Shrinder. That bill showed that he paid $60 for the goods. An expert witness for the State testified that the goods found in defendant’s possession were worth $212.

It was admitted by counsel for defendant at the trial that the property which was exhibited at the trial was the property of the Schwab Clothing Company.

There was some evidence that the reputation of defendant for morality was good.

The ninth instruction for the State was as follows :

“If you believe and find from the evidence that the defendant made any statement or statements in relation to the offenses charged in the information after such offense is alleged to have been committed, you must consider such statement or statements all together. The defendant is entitled to what he said for himself if true, and the State is entitled to the benefit of anything’ he may have said against himself in any statement or statements proved by the State. What the defendant said against himself, if anything, the law presumes to be true, unless negatived by some other evidence in the cause, because said against himself. What the defendant said for himself, the jury may believe or disbelieve as it is shown to be true or false by the evidence in this case. It is for the jury to consider under all the facts and circumstances in evidence in this case, how much of the whole statement or statements of the defendant proved by the State, if any, the jury, from the evidence in the case, deem worthy of belief.”

There was no evidence in the case on the question as to whether the statements of defendant to the police officers were voluntary or otherwise; The verdict was as follows:

“We, the jury in the above entitled cause, find the defendant guilty of receiving stolen property of the value of thirty dollars ($30) or more, knowing the same to be stolen as charged in the second count of the information, and assess the punishment at imprisonment in the penitentiary for two years.”

There was no request by the defendant that the court should instruct on the question as to whether the statements of defendant were voluntary; nor was that point suggested at the trial or in the motion for a new trial. Five days after the rendition of the verdict the defendant filed a supplementary motion for new trial which contained the following:

“5th. The court erred in giving instruction No. 9, as said instruction fails to instruct the jury that statements made by the defendant were ‘voluntary’ statements. ’ ’

I. Appellant insists that instruction 9 is a comment on the evidence and calls the jury’s attention specially to the defendant’s testimony. He also says that this court has in case after case cautioned judges not to use such an instruction. We call attention to the first words of that instruction, “If you believe and find from the evidence that the defendant made any statement, ’ ’ etc. Courts must act on the presumption that instructions are understood by the jury in their plain and obvious sense. They could clearly see that the “statements” referred to were such as were made by the defendant out of court and not to such, as were made by Mm on the witness stand. Counsel have refrained from giving us a list of tbe cases in wMch that instruction has been criticised. It was first used in tMs State in State v. Green, 13 Mo. l. c. 392. It was approved in State v. Carlisle, 57 Mo. l. c. 106; State v. West, 69 Mo. l. c. 406; State v. Curtis, 70 Mo. l. c. 600; State v. Young, 119 Mo. l. c. 525. The latter case said, “Although there is rarely any necessity for it, it does not constitute error.” In State v. Darrah, 152 Mo. l. c. 541, it was said, “TMs instruction has proved to be a good workable instruction for many years, is not calculated to mislead a jury, and continues to command our approval. ’ ’ That instruction was again approved in State v. David, 226 Mo. l. c. 511. The language used in the instruction has not always been the same. In the present case it is to be commended for its accuracy and freedom from error.

Appellant contends that such an instruction should require the jury to find whether such statement was voluntary. There are many cases in which the defendant has the right to an instruction submitting to tbe jury tbe question as to whether such statements made by defendant were voluntary. There is no case which holds that such a proposition should be embodied in the instruction now under discussion. We do not here decide whether the defendant, on the facts in this case, was entitled to an instruction submitting to the jury the question as to whether defendant’s statements were voluntary. We hold that it was not necessary to make such a- proposition a part of the instruction under discussion. The question as to whether the court should have given an instruction on that proposition is not before us.

That subject was not mentioned in the motion for a new trial. If the supplementary motion should be construed to raise that point, we mxLSt hold that the supplementary . . . . , motion was invalid as it was rued out °f time. Section 5285, Revised Statutes 1909, requires that the motion for a new trial shall be filed within four days after verdict. This requirement is mandatory. [State v. Maddox, 153 Mo. 471.] In Merrielees v. Railroad, 163 Mo. 470, it was held that all motions for a new trial and all grounds therefor must be filed within four days after the verdict.

That was a civil case, but the statute is the same in criminal eases. Appellant is in no position to be heard on that question for another reason. That question was held in State v. Thomas, 250 Mo. l. c. 215, to be a collateral one on which the court is not bound to instruct unless so requested by defendant. No such request was made.

II. The use of the words “to be stolen” instead of the words “to have been stolen” does not invalidate the verdict. In State v. McGee, 181 Mo. 312, it was held that a verdict of guilty of larceny from a person in the nighttime was not responsive to the charge of stealing from the person of the party named. In that case this court declined to pass on the question as to the curative effect of the words ‘ ‘ as charged in the indictment, ’ ’ as the case was reversed on other grounds. In that case there was a radical difference between larceny from a person and larceny from the person. The statute was based on that distinction. In this case there is legally no difference between knowing the goods to be stolen and knowing them to have been stolen.

The judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

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

All the judges concur.


text:
    THE STATE v. CLARENCE MINER, Appellant.
    Division Two,
    January 4, 1915.
    1. CARNAL KNOWLEDGE: Attempt to Rape: Instructions: 'Verdict. Where an instruction in a trial for carnally knowing a female child under fifteen told the jury that if they found certain facts they should find the' defendant guilty of an attempt to rape, a verdict finding him “guilty of an attempted rape” was sufficient, and was not a special verdict.
    2. INSTRUCTIONS: Exceptions: Appeal: Motion for New Trial. To be reviewable on appeal exceptions to the giving of instructions must be preserved in the motion for a new trial.
    3. CARNAL KNOWLEDGE: Rape: Attempt: Evidence. The evidence in a trial for carnally knowing a female child under fifteen held to support a conviction of an attempt to commit rape, where it was admitted that the prosecutrix had previously been carnally known by another and her testimony does not show whether there was penetration by the defendant.
    Appeal from St. Louis City Circuit Court. — Hon. Kent K. Koerner, Judge.
    Aeeirmed.

      Fish é Fish for appellant.
    (1) The verdict is a special verdict and is bad. Said verdict reads as follows: “We, the jury in the above entitled cause, find the defendant guilty of an attempted rape, and assess the punishment at imprisonment in the penitentiary for two years.” The court instructed that “if you further find that the said Thelma Minor was then and there a female child under fifteen years of age. ’ ’ As said verdict was a special verdict, it was necessary for the jury to so find. State v. Dewitt, 186 Mo. 61; State v. Cronin, 189 Mo. 663; State v. Rowe, 142 Mo. 442; State v. Jones, 168 Mo. 398; Bishop, New Crim. Proe., sec. 1005; State v. McGee, 181 Mo. 312; State v. Davis, 137 Mo. 457. (2) Defendant’s acts only amounted to indecent and lascivious conduct and, however reprehensible morally, did not constitute an assault with intent to ravish and carnally know. State v. Bowers, 239 Mo. 431; State v. Dalton, 106 Mo. 469.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) One charged with rape may be convicted of an asault with intent to rape. Sec. 4482, R. S. 1909; State v. Dalton, 106 Mo. 463. (2) Sufficiency of the evidence. State v. Dalton, 106 Mo. 467; State v. Adams, 247 Mo. 653; State v. Stockhouse, 242 Mo. 450; State v. Shrayer, 104 Mo.. 445; State v. Riseling, 186 Mo. 524. (3) Where exceptions to the giving of instructions are not preserved in the motion for a new trial, they are not reviewable. State v. Foley, 220 Mo. 89; State v. King, 194 Mo. 482; State v. Espenschied, 212 Mo. 222; State v. Long, 209 Mo. 366; State v. Lackey, 230 Mo. 718; State v. Crites, 215 Mo. 91.
   ROY, C.

Defendant was tried on an information charging him with carnally knowing a female child under the age of fifteen years, and was convicted by the jury of an attempted rape. His punishment was fixed by the jury at two years in the penitentiary and he was sentenced accordingly.

The prosecutrix, Thelma Miner, is a daughter of defendant’s wife by a former husband, and has assumed the name of her stepfather. She was twelve years old at the time of the trial in January, 1914. It was charged that 'the offense occurred on November 19, 1913. The prosecutrix testified that one morning before she rose defendant got in bed with her, placed his sexual organ on hers, and that when he got off her her private parts were slimy. She stated that she did not know whether there was any penetration at the time. She testified that soon thereafter the same thing occurred in the bath room, but that she could not say whether there was any penetration.

The testimony of physicians both for the State and for the defendant showed that her hymen was ruptured and that she was suffering from gonorrhoea. A physician testified for the defendant that he had examine'd defendant for venereal diseases and found none. During the cross-examination of Thelma the following occurred :

“Q.- Thelma, do you remember what your own father, do you remember your own father in Chicago? A. Yes, sir.
“Q. Do you remember him, do you remember what he did to you in Chicago ? A. (No response, witness cries.)
“Mr. Logan: I am not going to ask any more about that, Thelma.
“Mr. Moore. I understand the fact to be, if it will save this witness, I have no personal knowledge but I have no reason to doubt the fact, but it was reported to me by the probation officers from investigation, that her own father first ruined this child and I understand he is now serving a term. So for the purpose of this case, that may be taken as an established fact.
“The Court. Very well.
“Mr. Logan: I wasn’t so much trying to establish that.”

Police officers McLaughlin and Kilker testified that after defendant’s arrest he stated to them that on several occasions he went into Thelma’s bedroom in his night shirt and lay on top' of her, and that on one occasion he “put it between her legs and the discharge went up there.” He denied to them that there was any penetration.

The defendant testified that the proeseutrix on several occasions treated him in a lascivious manner, and that one morning she had a cold and he went to her bed, placed both his arms on her shoulders, leaned over her body and was talking to her, and she got her hands on his private parts. He denied having made the statement attributed to him by the police officers.

The court instructed upon the subjects of rape and of an attempt to commit rape. The instruction on the latter subject is as follows:

“4. If you find the defendant not guilty of rape, then it will become your duty to consider whether or not under the evidence, of which you are the sole judges, the defendant is guilty of an attempt to commit rape.
“If, upon consideration of all the testimony in this case, in the light of the court’s instructions, you find and believe from the evidence that at the city of St. Louis and State of Missouri, on the 19th day of November, 1913, or at any time within three years next before the filing of the information in this case, the defendant, Clarence Miner, did unlawfully and feloniously attempt to carnally know and abuse the said Thelma Miner, and that he did any act or acts toward the commission of such, that is to say, such acts as were suited and adapted to carrying into execution the design to carnally know and abuse the said Thelma Miner, with the unlawful and felonious intention to know and abuse said Thelma Miner, but failed in the perpetration thereof, or was prevented or intercepted in executing the same, then you will find the defendant guilty of an attempt to rape her, the said Thelma Miner, by attempting to carnally know and abuse her, the said Thelma Miner, if you further find that said Thelma Miner was then and there a female child under fifteen years of age, and unless you so find, you will acquit the defendant of an attempt to ravish and carnally know the said Thelma Miner.
“If yon find the defendant guilty of an attempt to carnally know and abuse the said Thelma Miner, yon will assess the defendant’s punishment at imprisonment in the penitentiary for a term of not less than two years, nor more than fifteen years.”

The verdict found the defendant ‘ ‘ guilty of an-attempted rape.” The motion for a new trial did not raise the question of the propriety of giving instruction 4.

I. The verdict is sufficient. The instruction told the jury that if they found certain facts therein mentioned they should find the defendant gWlty of an “attempt to rape her, the said Thelma Miner.” “The language of the verdict, being that of ‘lay people,’ need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice, and all fair intendments will be made to support it.” [2 Bishop’s Crim. Prac., sec. 1005a.] “A special verdict, the rendering whereof is always optional with the jury, is one which sets out the facts, leaving the court to draw therefrom the conclusion of law.” [2 Bishop’s Crim. Prac., sec. 1006.]

It was said in State v. Miller, 255 Mo. l. c. 231, that the verdict should be responsive to the charge in the information (unless it is a general verdict), to the evidence and to the instructions.

In this case the conviction being of an offense less than that charged in the information but included in it, the verdict could not be categorically responsive to-the charge. The instructions separated the charge into its two elements, the greater offense and the lesser one, clearly defining both. The verdict responded to the evidence and to the charge included in the information as defined by the instructions. The verdict was not a special verdict. It did not undertake to set out the constitutive facts found by the jury, leaving .to the court to say whether, on those facts, the defendant was guilty. The meaning of-the verdict is that the jury found all the facts necessary under the fourth instruction.

II. Appellant contends that instruction 4 is erroneous, in this, that it should have told the jury that they should find the defendant guilty of an assault with intent to ravish, and fix his punishment in accordance with section 4482, Revised Statutes 1909, the minimum of which is a fine and imprisonment in the county jail. That instruction was not assailed in the motion for a new trial and is not for that reason subject to attack here.

III. Appellant contends that the evidence tends to show rape, and that it also tends to show lascivious Evidence. conduct without any intent to rape, but that there is no evidence tending to show an unsuccessful attempt to rape.

If it were not an admitted fact that the father of Thelma had carnally known her before she came to live with defendant we would say that the evidence clearly showed rape by the defendant, and that he could not, therefore, be convicted of an attempt to rape. It cannot be said that her physical condition was caused by the defendant, as it can be attributed to the conduct of the father. The prosecutrix did not say whether there was any penetration by the defendant. Under all the circumstances it was for the jury to say whether the defendant was guilty of rape or of an attempt to rape or not guilty.

The judgment is affirmed.

Williams, G., concurs.-

PER CURIAM.

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

All the judges concur.


author: WILLIAMS, C. PER CURIAM.

text:
    THE STATE v. STERLING PRICE, Appellant.
    Division Two,
    January 4, 1915.
    j.. SODOMY: Evidence. Evidence held sufficient to support a conviction of sodomy.
    2. -: Instructions: Ail the Law of the Case: Motion for New Trial: Appeal. The motion for a new trial must specify wherein the court in a criminal trial failed to instruct on the law of the case, and the general assignment that the court failed “to instruct on all the law governing the case” presents no point for appellate review.
    Appeal from Jackson Criminal Court. — Eon. Ralph 8. Latshaw, Judge.
    Affirmed.

      Loyd Marts for appellant.

      John T. Barker, - Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
   WILLIAMS, C.

Upon an information charging him with “the detestable and abominable crime ag’ainst nature,” defendant was tried in the criminal court of Jackson county, found guilty, and his punishment assessed at ten years in the penitentiary. The trial court entered a remittitur of five years of the punishment and thereupon sentenced him to serve five years in the penitentiary. Thereafter defendant duly perfected an appeal to this court. The evidence upon the part of the State tended to establish the following facts: The offense was committed by defendant upon the body of an 18-year-old boy while the two were cell mates confined in the county jail at Independence, Missouri. At the time of the alleged offense, defendant was serving a term in the jail at Independence on a plea of guilty to the charg'e of larceny. He had been previously convicted and served a term in the Missouri penitentiary for attempted burglary and larceny. The 18-year-old boy upon whom the offense was committed had just received a two-year sentence for burglary and was being held in jail preliminary to his being transported to the penitentiary. On the day of the alleged offense, the defendant, who prior thereto had become acquainted with the boy, invited him to become his cell mate, telling him that his (defendant’s) wife was going to send him some clean bed clothes. The boy accepted the invitation and moved into the cell with defendant. A short time after the guards locked them into the cell for the night, defendant asked the boy to submit to his unnatural sexual desire, but the boy refused. The defendant then seized the boy by the right hand and twisted his wrist and arm. and threatened him with violence unless he yielded. Thereupon the boy through fear of the defendant yielded and twice during that night defendant had carnal knowledge of the body of said boy. The next day the boy made complaint to the officers of the jail and was transferred to another cell. Nine or ten days thereafter, the jail physician made a physical examination of the boy and discovered an irritated and bruised condition of the rectum, which he testified could have been caused by the said act of defendant. Upon the cross-examination of the physician, the defendant’s attorney developed the following facts: At the time of, and for several months prior to, the alleged offense, the defendant was afflicted with a venereal disease. That at the time of the examination the doctor did not discover any indications of the said disease upon the boy. The doctor further testified, however, that it would require from three to six weeks after infection for the disease to develop and that if the boy should have become infected with the disease by contact with the defendant the symptoms thereof would not have developed at the time of the examination. The defendant, testifying in his own behalf, denied that he had, in any manner, interfered with the boy. Two or three witnesses for the defendant, inmates of the jail, testified that a few days after- the alleged offense they heard the boy say that defendant had not violated his person, but that it was a “frame up” upon the defendant, and there is some inference from their testimony that the boy was trying to obtain a parole and perhaps -thought that by making the charge against this defendant he would enlist the sympathy of the officers and aid his chances of obtaining a parole. The boy did not obtain a parole so far as this record shows.

I. Appellant has not favored us with a brief in his behalf.

In the motion for a new trial, it is contended that the verdict is against the evidence.

The jail physician’s testimony tended to corroborate the boy’s testimony of the abuse of his body. The evidence upon the part of the State clearly made out a prima-facie case against the defendant (State v. Wilkins, 221 Mo. 444), and is therefore sufficient to support the verdict.

II. The motion for a new trial further assigned as error the action of the court in admitting improper evidence against the defendant and in excluding proper evidence offered by the defendant. Concerning these two points, it is sufficient to say that the record before us shows that the court admitted all the evidence offered by defendant and sustained each objection made by defendant to testimony offered' by the State.

III. The motion for a new trial does not complain of the instructions given, hut assigns as error the failure of the court “to instruct on a^ law governing the case.” This assignment does not specify upon what point of law the court failed to instruct and therefore fails to present a point requiring further consideration here.

IV. The motion in arrest attacks the information.

The information substantially follows the form set forth in Kelley’s- Criminal Law and~ Practice, par. 936, except that certain necessary changes were made to conform to the facts in the present case. We are unable to discover wherein the information or any other portion of the record proper is defective. It therefore follows that the judgment

should be affirmed. It is so ordered.

Roy, G., concurs.

PER CURIAM.

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

All the judges concur.


text:
    THE STATE v. ED BOWEN, Appellant.
    Division Two,
    January 4, 1915.
    WITNESSES: Impeachment by Party Offering: Contradictory Statements. The party calling a witness cannot impeach him by showing his contradictory statements until he has become adverse, and accordingly a judgment of conviction is reversed and the cause remanded, where the State proved that one of its own witnesses had testified before the grand jury that the defendant had confessed to him, a matter he failed to touch upon in his testimony at the trial.

      Appeal from Carter Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed and remanded.

      L. O. N eider and J. F. Fullbright for appellant.

      John T. BarJcer, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
   ROY, C.

A jury convicted defendant of rape committed upon Naomi Headrick, a female child under the age of 14 years. His punishment was fixed at five years in the penitentiary. A former appeal in this case resulted in a reversal on account of the erroneous admission of impeaching evidence. [247 Mo. 584.]

It would serve no good purpose to encumber the reports with a restatement of the facts except in so far as they are different from those on the former appeal.

On the second trial three physicians testified that calomel is of a nature tending to produce abortion, thus strengthening a weak point in the State’s case on the former appeal.

Calvin Lane, a witness for the State, testified as to statements made by defendant to him as follows:

“Yes, before her death, he told me that she was pregnant, that he thought she was. He come to my place to call a doctor at the time. I met him at the gate and we talked some little bit. I asked him how the folks was and he said Naomi was sick, pretty bad sick, that she had taken the cholera morbus a few days before that, on Friday I think, and he told me thought there was something bad the matter with her. I asked him what, and he said he thought she was in a family way; I told him that certainly was not the case, a child like that, and he said he believed it was. I asked him who it could be and he said he didn’t know for sure but that he would find out later; he said he thought it might be Bumam’s boy and not to say anything about it until he found out certain.”

He also testified that on the day after Naomi’s death defendant told him not to cry, that he (witness) would get forgiveness. He was then ashed whether he remembered any other statement made by defendant about the matter, and answered, “If he said anything else, I don’t remember it.” This witness was recalled by defendant during the introduction of the evidence for defendant, but the evidence then elicited by the defendant from the witness did not in any material respect change or add to his testimony as given when first on the stand. Counsel for the State then examined the witness, and the following occurred:

“Q. Did you testify before that grand jury? A. Yes, sir.
“Q. I will read you this statement and ash you if that is your testimony? ‘I know the defendant, his wife and this child. The defendant, Bowen, came to my house' on Monday and wanted me to phone for a doctor. First called Chilton, then Odell. I asked him what was the matter and he told me that Naomi was sick and further said there was something bad the matter and that his wife thought so too. I says that can’t be can it and her so young. He said that it really was and that no one but Huston Burnam was the man. I called the doctor for him. Bowen told me not to say anything about this until after the doctor came and see what he said. The night after the miscarriage we talked, Bowen and I, about the matter again, and I told him if he couldn’t tell me the truth I didn’t want him to tell me anything, that to bring in an innocent party would be ’most as bad as the deed itself and he. made a confession to me by saying, ‘I am responsible for it,’ and didn’t accuse any other party. I also heard his mother ask him about the truth of the matter concerning him, and Bowen said it was as bad as it could be. He came to me again and asked me to pray for Mm and further said he had got down on his knees and made it all well between him and Ms Lord but asked others to pray for him. The girl said she didn’t take any medicine to cause a miscarriage.’ Is that your testimony?
“Objected to by defendant as an effort to impeach their own witness, which objection was by the court overruled. To which ruling of the court defendant excepted at the time.
“It is supposed to be, I signed it.”

The foreman of the grand jury that found the indictment then testified that Calvin Lane testified as above shown before the grand jury, and Lane’s evidence before the grand jury was read to the jury by the State, all done over the objection of defendant that it was an attempt to impeach the State’s own witness.

There are two ways in which a witness may disappoint the party calling him. He may merely fail to testify to all or a portion of the facts to wMch he was expected to testify; or he may go farther and testify adversely, m favor of the opposite party. In State v. Burks, 132 Mo. l. c. 373, this court said:

“It has been ruled also in many of the other States that the mere failure of a witness to prove the fact for which he was' called does not constitute him such an adverse or hostile witness as will justify the court in permitting a party to impeach his own witness. [Shackelford v. State, 27 S. W. (Tex.) 8; People v. Mitchell, 94 Cal. 550; Hickory v. United States, 151 U. S. 303.]
“Accordingly it must be ruled upon the great weight of authority that a party cannot, either in a civil or criminal case, discredit or impeach his own witness by proof of contradictory statements previously made by his witness, unless he has been entrapped or misled by some artifice or statement to him or to someone upon whom the party had a right to rely, or unless there is an express statute permitting such evidence.”

That case recognizes the difference between the case where the witness merely fails to testify, and the case where he becomes adverse.

In Clancy v. Transit Co., 192 Mo. 615, the witness became adverse. It was held that the party calling him was entrapped into putting him on the stand and was entitled to impeach him by showing his contradictory statements. That doctrine was affirmed in Beier v. Transit Co., 197 Mo. 215. Those last two cases did not discuss the distinction above mentioned. It may be confidently said that every authority which has discussed that distinction holds that a party calling a witness cannot impeach him by showing his contradictory statements unless he becomes an adverse witness as above explained. The following is a partial list of those authorities: 2 Wigmore on Ev., sec. 904, par. 8; People v. Jacobs, 49 Cal. 384; Chism v. State, 70 Miss. 742; Langford v. Jones, 18 Ore. 307; Worley v. Spreckels, 163 Cal. l. c. 70; Marugg v. Kells, 146 Ill. App. 394.

There are several reasons why a witness who has not become adverse should not be so contradicted. The first is this: Such contradictory statements are never used for any purpose except to impeach the witness. They are not to be considered by the triers of fact for any other purpose. On what theory is a witness to be impeached when he has merely failed to testify? It has been said that the contradiction of such a witness is the destruction of a straw man erected by the party himself, for its effect upon the jury. Another reason is, that such a method of contradiction if it did not open up the flood gate for the admission of hearsay evidence, would go much too far in that direction.

The English statute enacted in 1854 provided for the impeachment of one’s own witness by evidence of Ms contradictory statements when the witness, in the opinion of the trial judge, became adverse.

The witness Lane did not become an adverse witness as above explained, and we are constrained to hold that the contradiction of Mm by evidence as to his testimony before the grand jury was prejudicial error. The use which may be made of the transcript of a witness’s testimony before the grand jury in refreshing the mind of such witness at the trial was fully considered in State v. Patton, 255 Mo. 245.

The judgment is reversed and the cause remanded for a new trial.

Williams, C., concurs.

PER CURIAM.

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

All the judges concur.


text:
    THE STATE v. HARRY CLAYTON, Appellant.
    Division Two,
    January 4, 1915.
    APPEAL: No Bill of Exceptions. Where no bill of exceptions was filed in the case, and the indictment charging defendant with a felony, the verdict, judgment and other portions of the record are all regular, the judgment will be affirmed.
    Appeal from St. Louis City Circuit Court. — Hon. Kent K. Koer.ner, Judge.
    Aeeermed.

      Willis H. Clark and Beno Altheimer for appellant.

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

Defendant was charged under indictment with escaping from an officer having him in custody on a charge of grand larceny. He was convicted by a jury and his punishment assessed at two years’ imprisonment in the penitentiary. No hill of exceptions was ever filed in the case.

The indictment, verdict, judgment and other portions of the record offered are all regular and sufficient. Finding no error therein, the judgment is affirmed.

Williams, C., concurs.

PER CURIAM.

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

All of the judges concur.