author: GANTT, J.

text:
    REBECCA ROBERTS et al., Appellants, v. HERSCHEL BARTLETT et al.
    Division Two,
    October 25, 1905.
    1. WILL CONTEST: Action at Law: When Matter for Jury. A will contest is an action at law, and being such the appellate court will not reverse the judgment because the jury found against the weight of the evidence, but will do so only when, on an examnation of the testimony, no evidence is found to support the verdict or upon which it can be based.
    2. -: Incapacity: Meaning. Testamentary capacity means that the testator at the time of the execution of his will had sufficient understanding and intelligence to transact his ordinary business affairs and to understand the nature and character of his property and the persons to whom he was giving it.
    3. -: -: Capacity to Make Contract. A man may be capable of malting a will and yet incapable of malting a contract or managing an estate.
    4. -: -: This Case. The testator was at the time of executing the will eighty-five years old, and very feeble from old age and disease. In his younger years he was mentally strong, possessed a vigorous constitution, had a most successful career as a merchant, was scrupulously neat and clean in his dress and person, a liberal provider for his household, affectionate and kind to his relatives, who were the children of his half-brothers, and were at all times industrious and respectable, though poor. He frequently visited them and they did him. At about the age of seventy he began to fail both physically and mentally, but his break-down was slow until about four years prior to the execution of the will, but thereafter was rapid. He began to have many delusions, illusions and hallucinations which were utterly groundless and during the last year of his life, within which he executed the will, he suffered from senile dementia, which incapacitated him for transacting his ordinary business and caused him to be suspicious of those about him whom he had formerly held in high regard, and caused a complete change in his habits of life; he became absolutely filthy, utterly oblivious to his personal conditions, and his home was unfit for a decent human being to inhabit; for many -years his wife had been insane and he kept her in his house without any female attendant, and he and she were left, against the advice and, protest of his neighbors and relatives, to the care of a negro man; he was exceedingly forgetful, and could not recall within a few hours business transactions of the simplest character; he could not count money above fifty dollars, but seemed to know the bills. The will was written in the city by the person named as executor, without bond, who had for years managed his money matters, and was witnessed by two of the executor’s employees, who were taken to his house for the purpose, and signed by him when none of his relatives or neighbors were present, and the executor gave no testimony of what had occurred between him and the testator concerning its provisions. The will gave one-half his estate to his wife, and out of an estate of over thirty thousand dollars he gave twenty-five hundred dollars to his relatives, and the balance to 'a charity of which the executor was a trustee, and made no provision whatever for an epileptic nephew who was utterly helpless. Seld, that a case was made for the jury to determine' whether or not he had sufficient capacity to make a will, and the court erred in directing a verdict sustaining the will.
    5. -: -: Disregard of Relationships: Evidence. It is perfectly proper for a testator, if of sound mind and disposing memory, to disregard the ties of relationship and the needy condition of his relatives; yet such action is a circumstance which the court and jury may consider in determining whether or not he had testamentary capacity.
    6. -: Undue Influence: Confidential Relation: Presumption: When .to be Rebutted: Jury Question. The executor who wrote the will and took it to the testator to be executed, along with the witnesses who were his employees, had for at least two years loaned the childless testator’s funds and otherwise managed his affairs, and was the agent and trustee for a charity organization to which the will, after devising one-half of the estate to his insane wife, gave tho bulk of the balance. The testator was an exceedingly feeble old man, mentally and physically, and by the will relieved the executor of the necessity of giving bond, and authorized him to sell the real estate. The executor had written at least three wills for the testator-, and when, on a former occasion, the testator’s nephew died, leaving a considerable estate, the testator desired the same executor to be administrator of that estate, although he said he knew he would not give a bond. Held, first, that the executor stood in the relation of confidential friend and adviser to the testator;' second, the evidence was sufficient to shift the burden and require the executor to rebut the presumption of undue influence; third, the fact that the bequest was to a charitable association instead of to the executor or relative of his, did not relieve him of the duty of rebutting the presumption of undue influence; fourth, undue influence need not be shown by direct evidence, but may be inferred from facts and circumstances; and, fifth, under the circumstances, it was for the jury to say whether or not the will was the result of the undue influence on the part of the executor over the testator.
    7. -: -: -: For Benefit of Another. Bequests obtained by a charitable association through the undue influence of the executor who was also, the scrivener of the will and who held a confidential relation with the testator, cannot be held by it, although there was no personal interference on the part of its officers in bringing about the gift.
    8. -: Competent Witness: Husband of Hejr. In an action brought by the nieces of the intestate and their husbands to set aside a will, the husbands of such nieces are competent witnesses for plaintiffs. The question at issue is whether or not the deceased left a will, and as there is no presumption that he did, it devolves upon the defendants to establish that fact, and until that fact is established the inchoate right to curtesy of the husbands of the testator’s nieces in the lands of their wives prima facie attaches, and they have marital interests which cari only be defeated by the establishment of the will. . They are, therefore, competent to testify as parties to the action. [Distinguishing Steffen v. Bauer, 70 Mo. 405, and Wood v. Broadlev, 76 Mo. 23.]
    Appeal from Buchanan Circuit Court. — Hon. W. K. James, Judge.
    Reversed and remanded.

      W. E. Sherwood and G. F. Strop for appellants.
    (1) Insanity is shown by proof of acts and conduct inconsistent with the character and previous habits of the party. McCurry v. Hooper, 12 Ala. 823. (2) Senile dementia is a distinctive form of insanity which incapacitates the party to such an extent as to destroy his capacity to make a will. This mental disease is one well recognized by all of the medical authorities and has been recognized by the Supreme Court of this State and by the courts of last resort in sister States. Beyer v. Spangler, 61 N. W. 1072; App. of Ulmer, 12 Atl. 686; Kelly y. Gephart, 79 S. W. 420: (3) Mental incapacity to an extent to invalidate a will may be shown by taking into consideration the testator’s physical condition, his age, the nature of the will and disposition of his property and the surrounding facts and circumstances. It is not necessary that insanity actually exist. It is sufficient if, upon the whole case made, the evidence tends to show lack of testamentary capacity. Chappell v. Trent, 19 S. E. 304. The above is a leading case which discusses thoroughly the general rule of testamentary capacity. See also: In re Shaw’s Will, 2 Red-field, 107; App. of Richmond, 22 Atl. 82; McDaniel v. Crosbey, 19 Ark. 533; Harvey v. Anderson, 12 Ga. 76; Prentis v. Bates, 53 N. W. 153; Will of Mary Ames, 2 N. W. 408. (4) The statute in relation to will contests is in pari materia with the statutes governing ordinary trials, and if there is any testimony, either upon the question of mental incapacity, or upon the question of undue influence, the case should be submitted to the jury. State ex rel. v. Guinotte, 156 Mo. 520; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314. (5) The burden is upon proponents to establish the sanity of testator, nor is the burden shifted by the introduction of the testimony of the attesting witnesses. The attesting witnesses make a prima facie case, but when there is any evidence of insanity, or lack of capacity or undue influence, the burden of proof remains with the proponents throughout the case and it is not shifted. Jones v. Roberts, 37 Mo. App. 172; Elliott v. Welby, 13 Mo. App. 28; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 456; Karl v. Gamble, 120 Mo. 297. (6) When the scrivener is the principal beneficiary the law exacts strict proof of the capacity of testator, and also that the testator was not unduly influenced and that the will was the free and voluntary act of testator. Harvey v. Sullins, 46 Mo. 152; Woods v. Devers, 19 S. W. 1; Patton v. Allison, 26 Tenn. 320. (7) Testator in this case by a will, written by the trustee of the principal beneficiary, devised and bequeathed practically one-half of his estate to strangers. The other half, under the law, he could not devise or bequeath because it belonged to the widow. Therefore, testator left all of his estate which he had a right to control by will to strangers. This fact is a very strong circumstance against the will and when coupled with old age and even a slight showing as to mental incapacity, casts upon proponents the burden of rebutting a presumption of undue influence. , Caldwell v. Anderson, 104 Pa. St. 199; Will of Mary Ames, 2 N. W. 408; Renn v. Samos, 33 Tex. 760. (8) The fact that testator had been during his entire life on intimate terms with his relatives and heirs-at-law and that the will was not in accordance with the testator’s past life and violated the Statute of Descents and Distribution and was unjust to his natural heirs, raises a strong suspicion of undue influence, which is sufficient to cast upon proponents the burden of showing that the will was the voluntary act of testator and was not procured by undue influence. In re Budlong’s Will, 27 N. W. 925; Sims v. Russell, 57 N. W. 601; Cay v. Gillilan, 92 Mo. 250. (9) Where the principal beneficiary is the confidential friend and advisor of testator, the law exacts strict proof as to the mental capacity of testator, and also a direct showing that no undue influence was used. Jones v. Roberts, 37 Mo. App. 163; Woods v. Devers, 1 S. W. 1; Lane v. Moore, 23 N. W. 828; Garvin, Admr. v. Williams, 44 Mo. 465 ; Tibbe v. Kemp, 154 Mo. 580; Bradshaw v. Yates, 67 Mo. 221. (10) When a confidential relationship is shown between the principal beneficiary and testator, and when the testator leaves all of his estate which he has a right to dispose of to strangers,, and when the scrivener was the confidential friend in the lifetime of the testator and receives the principal bequests or legacies, and when, as in this case, the will gives such scrivener absolute power of settlement of the estate without even the supervision of the court, it would seem that the concurrence of all these facts presents a case where constructive fraud and undue influence will he presumed, and a case which requires the strictest proof, both as to testamentary capacity and as to the absence of undue influence, and as to the fact that the testator had disinterested advice in the preparation of his will. Caldwell v. Anderson, 104 Pa. St. 199; Eenn v. Samos, 33 Tex. 760. (11) Even though the evidence might not be conclusive or even entirely satisfactory or sufficient upon the question of lack of capacity, and even though the evidence might not be conclusive or entirely satisfactory on the question of undue influence or constructive fraud, yet it is certain that if there was any lack of testamentary capacity the opportunity for undue influence would increase in proportion to the degree of lack of capacity, and, therefore, where there is evidence, even though slight, upon both of these propositions, the proponents then have cast upon themselves the burden of making a clear showing, both as to capacity of testator and the absence of undue influence. McDaniel v. Crosby, 19 Ark. 533; Will of Mary Ames, 2 N. W. 408; Meyers v. Hauber, 98 Mo. 438; Caldwell v. Anderson, 104 Pa. St. 199; Eenn v. Samos, 33 Tex. 760; Smith v. Smith, 19 N. W. 47; Appeal of Cuthhertson, 97 Pa, 163. (12) The rule is well settled that wherever the relation of confidence and trust exists, and the scrivener and confidential friend is in a position where his influence might operate unduly in favor of the charitable association of which he is a director, the charitable association claiming under the will has cast upon it the full burden of showing the absence of undue influence, and the fact that the testator had disinterested advice. This is the rule adopted in this State with reference to deeds, and also wills. Garvin, Admr., v. Williams, 44 Mo. 465; Rankin v. Patton, 65 Mo. 415; Yosti v. Long! ran, 49 Mo. 599; Tibbe v. Kemp, 154 Mo. 580; In re Blaire’s Will, 16 N. Y. Supp. 874; Dingman v. Romine, 141 Mo. 466; Caspri v. Church, 12 Mo. App. 293; Brigwell v. Swank, 84 Mo. 455; Ford v. Hennessey, 70 Mo. 580; Carl v. Gamble, 120 Mo. 297; Barkley v: Cemetery Assn., 153 Mo. 300. (13) Where the evidence tends to show that testator was suffering from mental weakness as a result of old age, or from' insanity which was not produced by some sudden cause, hut as the result of a chronic state of the brain; if this condition of the mind is shown to have existed before and after the time of the execution of the will, it is unnecessary to show the condition at the exact time the will was made, for the reason that the law will presume, in the absence of clear evidence to the contrary, that the same mental condition continued, and the same causes which produced lack of mental capacity still operated. Giles v. Hodge, 43 N. W. 163; Daily v. Casteel, 56 Wis. 444; Smith v. Smith, 60 Wis. 326; Von de Veld v. Judy, 143 Mo. 365; In re Bull’s Will, 19 N. W. 503; B'ever v. Spangler, 61 N. W. 1072.

      H. K. White, T. J. Porter and A. W. Brewster for respondents.
    (1) In consideration of this case the court will exclude evidence improperly admitted which includes all the evidence of Messrs. Gage; Roberts and Riley, husbands of the female plaintiffs. R. S. 1899, sec. 4390; Wood v. Broadley, 76 Mo. 33. (2) When the propoents made a prima facie case by examination of the attesting witnesses and introduction of the will in evidence the burden of proof to sustain intestacy devolved upon contestants and remained there till the close of the case, and unless substantial evidence sustaining the two charges against the will was introduced, the peremptory instructions given were correct. Crowson v. Crow-son, 172 Mo. 691; Riggin v. Westminster College, 160 Mo. 570. (3) With the presumption in favor of testamentary capacity, there was no substantial evidence of want of testamentary capacity at the time of making the will which justified the court in allowing the case to go to the jury on that issue. Sehr v. Lindeman, 153--Mo'. 203; Campbell v. Carlisle, 162 Mo. 634; Maddox v. Maddox, 114 Mo. 46; Yon de Yeld v. Judy, 143 Mo. 367; Southworth v. Southworth, 143 Mo. 59’; Crowson v. Crowson, 172 Mo. 691; Crossan v. Crossan, 169 Mo. 161; Benoist y. Murrin, 58 Mo. 307; Cutler v. Zollinger, 117 Mo. 101;. Parmer v. Farmer, 129 Mo. 538; Hamon v. Hamon, 79 S. W. 422; Catholic University v. O’Brien, 79 S. W. 901. (4) There was no substantial evidence of undue influence in the procurement of the will, and the court did not err in giving a peremptory instruction on that branch of the case. The proof failed to show any confidential relations between Bartlett and Howell, and there is no presumption of undue influence arising from the preparation of the will while acting as trustee of the Hoagland Endowment Fund. Studebaker v. Cofield, 159 Mo. 612; Campbell v. Carlisle, 162 Mo. 634; Myers v. Hauger, 98 Mo. 433; Tibbe v. Kamp, 154 Mo. 545; Berberet v. Berberet, 131 Mo. 411; Schouler on Wills (2 Ed.), p. 227; 27 Am. and Eng.Ency.Law (1 Ed.), 495; 8 Cyclopedia of Law and Procedure, title “Confidential Relations;” Bodwell v. Swank,' 84 Mo. .455;. Roberts v. Hope, 57 Cal. 496; Barkley v. Cemetery Association, 153 Mo. 316; Maddox v. Maddox, 114 Mo. 47; Hegney v. Head, 126 Mo. 619; Aylward v. Briggs, 145 Mo. 604; McFadin v. Catron, 138 Mo. 629; Brown v. Mercantile Trust Co., 4 Atl. 256.
   GANTT, J.

This is an appeal from the circuit court of Buchanan county confirming the last will and testament of John B, Howell late of said county. The contestants are the heirs at law of uthe said John, B. Howell, deceased. John B. Howell at the date of his death on the 7th of January, 1902, was eighty-five years old. He left- no children or other descendants, nor any brothers or sisters, nor any heirs excepting the children of his two half-brothers, who are the plaintiffs-in this case. By the will in contest here he devised one-half of the remainder of his estate after the payment of his debts and funeral expenses to his wife Elizabeth Howell in lieu of dower. To Stephen Howell, his brother’s son, he bequeathed one thousand dollars; to Norman Buxton, his wife’s nephew, five hundred dollars; to Til-lie Sage, a half-brother’s daughter, five hundred dollars; to Bettie Riley, his half-brother’s daughter, two hundred and fifty dollars; to Rebecca Roberts, his half-brother’s daughter, two hundred and fifty dollars; and to his friend Nicholas Chambers, one hundred and fifty dollars; and to Catherine Hughes and Joseph Cross-white, friends of his, each one hundred and fifty dollars. He then gave the residue of his estate to the Ladies ’ Benevolent Association, to be added to the Hoagland Endowment Fund, to be used as that fund is used for the benefit of the Old Peoples’ Home. He appointed Herschel Bartlett and David L. Bartlett, or the survivor or survivors of them, or those of which ever of them should be willing to serve, as executors, and requested that no bond be required of them. The will was executed on the 21st of September, 1901. This will was admitted to probate on the 10th of January, 1902. This action to contest the said will was commenced on the 29th of January, 1902, and under the instructions of the court, the jury returned the verdict that the said paper writing was the last will and testament of John B. Howell, deceased.

On the trial the defendants introduced the two subscribing witnesses, William E. Graves and Leon At-water who testified to the mental capacity of the testator, and then rested.

It appears on the face of the instrument that the said testator made two efforts to sign his name. The first time, he made a signal failure of spelling “Howell.” One of the subscribing witnesses accounted for a large black line which runs through this signature, by saying it was drawn there to enable the old gentleman to sign his name above it. The witness was in doubt as to whether the old man discovered he had left out some of the letters of his name or whether Herschel Bartlett called his attention to it. He is certain Bartlett spoke about it. Both signatures indicate extreme feebleness in the writer. The will was executed at the residence of the testator. The witnesses were both employees of Herschel Bartlett. They were taken out to the testator’s house by Herschel Bartlett. None of the testator’s relatives or neighbors were present at the execution of the will. It had been prepared by Herschel Bartlett at his office before going out to have the old gentleman sign it. Neither of the subscribing witnesses had ever met the testator in any manner except to see him on three or four occasions at Bartlett’s office, or when they went on a former occasion to witness his will. The old gentleman had nothing to do with their selection as witnesses. Mr. Atwater testified he thought the testator knew him from the fact that Mr. Bartlett said to him, “I guess you remember Mr. Graves and Mr. At-water,” and he responded, “How do you do, gentlemen?” Some eight months prior to this they had gone out on a similar mission and Bartlett had introduced them, but the old gentleman had given no indication that he recognized them otherwise. The will was read to him by Herschel Bartlett and once or twice he requested to have a clause read over a second time. It appears that within two years the old gentleman had executed two other wills, all drawn by Herschel Bartlett and attested each time by his two clerks. The circumstances under which Bartlett drew this will, and the directions, if any, given him by the old gentleman, are nowhere disclosed, Bartlett not having testified.

It is and was admitted in the pleadings that Herschel Bartlett was named as executor in said will and that he qualified as such and was in charge of the estate of John B. Howell at the date of the trial; that he is one of the trustees of the Hoagland Endowment Fund, and that the said fund is vested in trustees, the income of which is to be paid over to the Ladies’ Union Benevolent Association to be used for the support and maintenance of infirm and indigent old people, men and women, residents of Buchanan county, Missouri. It also appears that Bartlett Brothers handled the old gentleman’s money and invested it for him. The testimony tended to show a close confidential relation between the old gentleman and the Bartlett firm, and he made them executors without bond.

Thereupon the plaintiffs introduced evidence showing that they were the natural heirs of the said John B. Howell, deceased, according to the Statute of Descents and Distribution in this .State, and that John B. Howell, up to a period of about fifteen years before he died, had been a man of good health and strong physique, of strong mental powers and a successful business man, and had amassed a fortune of from thirty to fifty thousand dollars; he was very neat, tidy and a good dresser, and had always provided for himself and those about him, liberally and bountifully; that he had been affectionate and kind towards his various relatives, especially the plaintiffs herein, who were the daughters of his half-brother; that Henry Landrum, a son of his half-brother, who was at the time of the execution of said will, and had been for many years prior thereto, an epileptic, and unable to care for himself, entirely destitute, and an object of charity among his relatives, was omitted from and not mentioned in any provision of said will. Plaintiff’s evidence further tended to prove that they were people in the humbler walks of life, without any property excepting, perhaps, the household effects of their respective families, hut that they were all respectable and industrious- citizens for whom John B. Howell, the testator, had always evinced much affection and had always visited with them and frequently entertained them, and had shown, them much kindness. Plaintiffs’ evidence tended also to show that some fifteen years before his death, the said testator commenced to fail physically and mentally, but the change was not marked until about four years before his death, at which time his decline became noticeable and rapid. There was evidence that about three years before the death of said Howell, he began, and at intervals which became more frequent during the last year of his life, to have delusions, illusions'and hallucinations. Testimony of the plaintiffs tended to show that for a year prior to his death said Howell suffered from a distinctive form of insanity known as> senile dementia. The two physicians attending at the time of his death gave their opinion, in view of the condition that he was in just prior to and at the time of his death, that this dementia had existed for at least a year. Testimony tended to show that this disease is progressive and downward, that it tends to produce delusions and illusions in general, and incapacitating one from transacting business, and causing the patient to become suspicious of those about him and frequently causing a change in the methods and habits of life, and bringing about frequently a total disregard of personal cleanliness and indifference to the ordinaiy demands in the way of food and clothing. The testimony tended to show that for a number of years prior to his death, a néphew of his, Levin Howell, who had lived with him, and looked after his affairs, died the March preceding the death of John Howell, the testator; that during the last year of his life, the testator imaginéd that negroes were in the house for the purpose of annoying him and his wife, and that soldiers were quartered in his home, and he frequently complained that the government ought not to permit him to he annoyed with soldiers in his home. At other times he imagined that his wife, who was insane and had been for many years, was stealing from him; he also believed that other relatives were stealing from him. He had imaginary conflicts with persons in his room, and believed that he was killing people. After the death of his nephew, Levin, he imagined that Levin had visited him during the night and conversed with him. During the month of August, immediately preceding the time of the execution of the alleged will in September^ he became very ill and for about three weeks was in a critical condition. The testimony was that for a year preceding his death he could only move around his room by supporting himself on chairs and other objects, and had lost the control of his arms and hands in a large degree; that he had no coherence of thought; that be would start to tell some story or reminiscence which he would never complete, but would commence over again and again forgetting the conclusion of the story and the fact that he had told a part of it; that frequently when his friends and relatives visited him, while they were talking to him he would doze into unconsciousness and was aroused with difficulty. Dr. Woodson, superintendent of the insane asylum at St. Joseph, an expert on mental diseases, in answer to a hypothetical question based upon the foregoing facts and various others of a similar character, gave it as his opinion that Mr. Howell was insane at the time of his death, and for a long period prior thereto, including the date of the making of the will in question. The testimony of the plaintiff tended to show that for months prior to his death the testator’s house was in a woful condition of’filth, and that his insane wife was kept there without care of any competent servant, and that when his relatives insisted on his having competent help, he would say he was willing to pay a dollar a week, and when told that he could not obtain help at such a price, he would say that was enough; that he and his wife were left largely to the care of a negro man.

On the part of the defendants, however, it was insisted, notwithstanding the foregoing evidence, that Mr. Howell had sufficient mental’capacity to make a will, and they point to the fact that when Levin Howell died at the residence of the testator, he had on his person at the time of his death $3,613, which the old gentleman directed to he deposited in his own name before Levin was buried. Another fact was that while Levin was a corpse, a Mrs. Christopher came to rent one of the houses belonging to the testator, but he did not want to rent it to a widow, but Mrs. Riley, one of the plaintiffs, knew her and vouched for her, and he let her have the house. Mrs. Christopher paid the testator five dollars on account of the rent in advance and agreed to pay thereafter the rent, weekly, for that month, and after that a month’s rent in advance. Mr. Howell put the bill in his pocket, and later, on the same day, when Buxton wanted some money to pay for digging Levin’s grave, he had forgotten where he got the money; he was much distressed over Levin’s death. After Levin’s funeral, in expectation of Stephen Howell coming from Montana, Mr. Howell had the house cleaned and papered, this paper the old gentleman, showed to Mrs. Riley in the summer of 1901. Stephen Howell, Levin Howell’s brother, came to St. Joseph in June, 1901; he had not seen him for over twenty years, found him very forgetful and physically weak. He slept in the same room with his uncle at first, but as it began to get hotter he slept out on the porch. The old man was in' a very restless condition, and during the night would imagine persons were there who were not there, and sometimes these imaginings took place in the daytime. While Stephen was there the question of administration of Levin’s estate came up, and the old gentleman wanted William Bartlett to administer on it. After Le-yin’s death, Mrs.'Howell’s nephew, Buxton, attended to collecting the rents, and Herschel Bartlett attended to his other business. William Bartlett did not want to give a bond to administer on Levin’s estate, and when Cobb .was appointed administrator, the old gentleman asked to have William Bartlett sent up to be present while the inventory was being made. While the inventory was being made of Levin’s estate, the old gentleman directed Buxton, his wife’s nephew, what property to bring out to show the witnesses and spoke of the deposit of Levin’s money in March, and said Levin had a piece of real estate in St. Joseph. Major Garth, who was one of the witnesses to the appraisement, testified that the old gentleman was dressed in his night clothes at the time they made the appraisement; they got very little information out of him; he was very weak and feeble in body; he had some mind, but not as good as it had been. “I considered him unsound; he was certainly partially unsound.” Mr. Landers had business dealings with the old man in 1897 and 1899 about building and rebuilding a barn, and in both cases the old gentleman had difficulty in counting money; he could not count over fifty consecutively, although he knew the bills.

At the conclusion of the evidence by the contestants, the proponents of the will introduced no other testimony but prayed the court to give the following instructions, which were given:

“1. The court instructs the jury that there is no substantial evidence in this case that John B. Howell was not of sound mind at the time of the execution of the instrument propounded as his will dated September 21, 1901, and as to that issue they are bound to find in favor of the will.
“2. The jury are further instructed that there is no substantial evidence in this case showing or tending to show that the instrument here propounded as the last will and testament of John B. Howell, deceased, dated September 21, 1901, was obtained by undue influence exerted over the said John B. Howell, and as to that issue they are bound to find in favor of the will.
“3. Under the pleadings and evidence in this case the jury are bound to find that the paper here propounded and offered as the last will and testament of John B. Howell, dated September 21, 1901, was and is his last will and testament, and they will make their verdict in the following form: ‘We, the jury, find that the instrument here propounded, dated September 21, 1901, is the last will and testament of John B. Howell, deceased.’ ”

To the action of the court in giving these instructions, the plaintiffs at the time duly excepted, and afterwards and within four days, filed motion for new trial, which was heard and overruled and exceptions saved thereto, ánd an appeal is prayed and granted to this court.

I. The controlling points on this appeal are whether there was substantial evidence as to the incapacity of John B. Howell to make a last will and testament to require that issue to be submitted to the jury, and whether there was sufficient evidence of a fiduciary relation between John B. Howell and Herschel Bartlett to require the said Bartlett to overcome the presumption that said will was obtained by the exercise of undue influence in the circumstances of the case.

The rule of practice is well settled in this State, that a will contest is an action at law, and this court will not reverse the judgment because the jury found against the weight of the evidence, but that this court will examine the record to see if there is any testimony to support the finding, and where there is no evidence whereon to base the verdict, the judgment will be reversed. [State ex rel. v. Guinotte, 156 Mo. l. c. 520, 521; McFadin v. Catron, 138 Mo. 227.]

Proceeding, then, to an investigation as to the. quantum of evidence adduced by the plaintiffs to show that John B. Howell by reason of his extreme age and disease had not sufficient capacity to make a will, in general, testamentary capacity has been defined by this court on various occasions to be that the testator at the time of the execution of his will should have sufficient understanding and intelligence to transact his ordinary busines affairs and to understand the nature and character of his property and the persons to whom he was giving it.

[Farmer v. Farmer, 129 Mo. 534; Brinkman v. Rueggesick, 71 Mo. 553.]

And it has been often said that a man may be capable of making a will and yet incapable of making a contract or managing an estate. [Hamon v. Hamon, 180 Mo. 685.]

Accepting this as a proper rule for our guidance in the examination of the evidence in this record, we find the facts to be that John B. Howell, at the time of the execution of the will in contest, was a man eighty-five years of age, and very feeble from old age and disease. In his younger manhood, he was a man of vigorous constitution and mentally strong and had a most successful business career, and by his own efforts largely had amassed a fortune of over thirty thousand dollars; he had been scrupulously neat, tidy and cleanly in his dress and person, and had been a liberal provider for his household, affectionate and kind to his relatives, the plaintiffs in this case, who were the children of his half-brothers. Between him and his relatives there had existed the best of feeling and no cause of estrangement or dissatisfaction between them and him appears afterward in the evidence. These nephews and nieces appeared to have all been respectable, industrious and reputable citizens; he visited them and they frequently visited him and were entertained by him. The evidence tends to show that about fifteen years before his death, or when about seventy years of age, the testator began to fail both physically and mentally, but Ms breaking down was slow and did not become marked until about four years before Ms death when his 'decline became rapid, that about this time he began to have many delusions and hallucinations wMch were utterly groundless, and in the last year of his life during which he executed the will in contest, the medical testimony tended to prove that he was suffering from senile dementia, and that the effect of tMs disease was to incapacitate him from transacting his ordinary business and to cause him to be suspicious of those about 'Mm, for whom previously to that time he had held a high regard, and causing a complete change in the methods and habits of. his life; that whereas formerly he had been tidy and dressy he became not only slovenly, but absolutely filthy in his person, and that his home was unfit for a decent human being to inhabit; that he seemed utterly oblivious to his personal condition and that of Ms home; that for many years his wife had been insane, and that he continued to keep her in his house without any female attendant to look after and to attend to her wants; that when his relatives and" neighbors would suggest to him the necessity of providing some competent help for himself and his wife and to keep his home clean, he would say that he was willing to get a woman if she would stay for one dollar per week, and that that was enough, and thus both he and his wife were left to the care of a negro man. He ceased to provide himself with any proper clothing and at the time of the execution of the will the evidence tends to show that he was dressed in his night clothes which were of the coarsest kind and in no manner suitable to a man of his wealth, or at all in keeping with his former tidy and dressy habits. While it is urged by respondents that the cross-examination of plaintiffs’ witnesses tended to show that he had capacity to attend to his ordinary business, the great weight of the evidence indicated that he had little or nothing to do with the management of his affairs. His money matters seemed to have been left to the. care of Bartlett Brothers who invested and looked after his financial matters of importance. Prior to the death of his nephew, Levin Howell, that nephew looked after the household expenditures and smaller domestic matters. After he died, one Buxton, a nephew of his wife, succeeded Levin in looking after the home, but how well the Bartletts or Buxton managed his affairs there was no evidence in the case, and whether the testator understood enough to determine whether they were or were not faithful was not shown in the case. That' he was exceedingly forgetful and could not recall within a few hours business transactions of the simplest character, was shown by the evidence of the plaintiffs. It was shown by Mr. Landers, who rented his farm in Andrew county, that the old gentleman was incapable of counting money above fifty dollars, that he would seem to know the bills, and when he attempted to pay Landers about one hundred dollars for replacing a barn that was burned on his farm he could not count that much money, but was compelled, after various efforts, to leave it to Mr. Landers to count it out for him. At the time of the execution of his will none of his relatives or near neighbors were present, or had any conversation with him about it, and Herschel Bartlett, who wrote the will, gave no testimony as to what occurred between him and the testator in the way of directing the provisions of his will. The two subscribing witnesses had the very slightest acquaintance with the testator, and their own testimony discloses little or no opportunity to judge of his mentality. In view of all this evidence of extreme debility from old age, and of the radical change that had taken place in the testator, as testified to by those who had known him in his vigorous manhood and successful career as a merchant, coupled with the evidence of his utter disregard of the laws of cleanliness and health, his incapacity to realize the needs of his helpless and insane wife, leaving her to the care of a negro man, his refusal to provide her a female attendant and servant to look after her in her helpless condition, and his suspicion that his wife was stealing from him, in our opinion a case was made which should have been submitted to a jury to determine whether the testator, Mr. Howell, had sufficient mental capacity to make a will. We think it is clear that there was no such concurrence of testimony in favor of his capacity to attend to ordinary business affairs and to know the nature and amount of his estate and to whom he was giving it, as to justify the circuit court in declaring as a matter of law that he was capable of making a will. When it is considered that out of an estate of over thirty thousand dollars he gave his own blood relatives, kinspeople for whom he had always shown a natural affection and regard, only twenty-five hundred dollars, and that he made absolutely no provision for Henry Landrum, a nephew, who was an epileptic and utterly helpless and au object of charity, it will be hard to say as a matter of law that he had a mind and memory capable of regarding, and discriminating as to those who were the natural objects of his bounty and bound to him by the obligations of family and .blood. While it was perfectly competent for him, if of sound mind and disposing memory, to disregard these ties of relationship, it is a circumstance which the jury and the courts will take into consideration in determining whether as a matter of fact he had that capacity and understanding which the law requires to make a valid will, as already indicated in this opinion. Our conclusion on this point is that the circuit court erred in taking the case from the jury and not submitting this question, under proper instructions, to them to determine that fact.

II. Addressing ourselves now to the charge that the will in contest was the result of undue influence over the testator by Herschel Bartlett, agent and trustee for the Hoagland Endowment Fund, it appeared in evidence and the admissions in the pleadings that Herschel Bartlett was, prior to and at the date of the execution of the will, one of the trustees of the Hoagland Endowment Fund. By the will in contest the fund given by the testator to the Ladies’ Union Benevolent Association was “to be added to the Hoagland Endowment Fund to be used as that fund is.” That the firm of Bartlett Brothers, of which Herschel Bartlett was a member, were loan agents and invested the testator’s funds for him, is conceded; that they had in fact his unlimited confidence, appears fro'm the fact that he expressly exempted them from giving a bond for the execution of his will of which he had made them executors. It was shown also that Herschel Bartlett had drawn at least three wills for him. When Levin Howell died, the old gentleman desired the Bartletts, or one of them, to administer on the estate, although he said he knew that they would not give a bond and insisted on William Bartlett coming to his house when the inventory was made. At this time the evidence tended strongly to show that John B. Howell was of extreme old age and of greatly impaired intellect from what he had formerly been. That Herschel Bartlett was his agent in his important financial matters and stood in the relation of a confidential friend and adviser, there can be little doubt. For at least two years this relation had existed. The circuit court held there was no evidence that the mil in contest was obtained by undue influence over said testator. The question presented is whether upon the case made by plaintiffs, the defendants were not required to rebut the presumption of undue influence. Conceding there was no direct evidence of undue influence, does it follow that there was not enough to permit the plaintiffs to go to the jury?

It is well-settled law in this State that undue influence need not be shown by direct proof, but may be inferred from facts and circumstances. [1 Woerner, Law of Administration, sec. 32; Garvin’s Admr. v. Williams, 44 Mo. 465; Carl v. Gabel, 120 Mo. l. c. 297; Bradford v. Blossom, 190 Mo. 110; Dausman v. Rankin, 189 Mo. 677.] It may be shown by the relation of the parties, the mental condition of the person whose act is in question, and the character of the transaction. In Myers v. Hanger, 98 Mo. l. c. 438, it was said: “In determining whether a will is the result of undue influence, it is proper to consider the mental condition of the person upon whom the influence is alleged to have been exerted. And, as the physical condition has much to do with the mental, the physical condition of the testator may also be considered. So the will itself may be read to the jury, for they must determine the question of undue influence in the light of all the circumstances. The result may be considered in endeavoring to find the cause.” This statement of the law was approved in Bradford v. Blossom, supra.

In Gay v. Gillilan, 92 Mo. l. c. 263, it is said: “While it is true that undue influence will not be presumed, yet, when such facts are proved as will authorize a jury to find the existence of undue influence, then the burden shifts, and it then devolves upon the party charged to exonerate himself from such charge, in like manner as in the case of fiduciary or confidential relations.” [Maddox v. Maddox, 114 Mo. 35.]

With these principles established and taking into view the extreme old age of John B. Howell, the testator, his, extreme debility from old age and illness, the mental condition testified to by various witnesses for the plaintiffs, the trust relation existing between him and the executor Herschel Bartlett, the great confidence which he was shown to have reposed in the Bartlett firm, the fact that out of an estate of thirty thousand dollars he gave his own relatives with whom he had been on terms of affection, only twenty-five hundred dollars; that he entirely omitted from the list of his donees Ms nephew, Henry Landrum, who was an epileptic and an object of charity, the fact that he gave the great bulk of his fortune to the Ladies’ Union Benevolent Association to be added to the Hoagland Endowment Fund, and to be expended and used as the latter fund was used, and that Herschel Bartlett was a trustee of the Hoagland Endowment Fund, and when in addition to this it is considered that he gave this executor power to sell all of Ms real estate for such prices and on such terms as might seem proper to his executor, and that this executor was relieved of all obligation to give a bond for the faithful discharge of his trust, we think there was evidence sufficient to shift the burden and require the executor, Bartlett, who was also the scrivener of this will, to rebut the presumption of undue influence, and it matters not that the bequest was to a charitable association instead of to the scrivener or relative of his.

The case of Barkley v. Cemetery Association, 153 Mo. 300, does not conflict with the conclusion we have reached on this point. In that case we held that the proof did not show a confidential relationship, but we said: “We recogmze the well-settled rule which indulges the presumption that undue influence has - been used, where close, confidential or fiduciary relationships exist. This rule has for its basis some pecuniary benefit to be derived by the charity represented by the person by whose influence the testator is influenced to make the will.” In tMs case, we think the .evidence sufficient to authorize the jury to find that a confidential or fiduciary relation existed between the testator and Herschel Bartlett, and that the peculiar language of the will made the legacy as, available to the Hoagland Endowment Fund, of which Herschel Bartlett was a trustee, as if it had been given in express terms directly to said fund.

As to the suggestion that no officer of the Ladies’ Union Benevolent Association exerted any undue influence to bring about tbe valuable legacy bequeathed by this will to said association, the remarks of Wilmot, C. J., in Bridgman v. Oreen, 2 Ves. Sr. 627 (Wilm. 64), are apropos. In that' case he said: ‘ ‘ There is no pretence that Green’s brother or his wife was a party to any imposition, or had any due or undue influence over the plaintiff; but does it follow from thence that they must keep the money? No. Whoever receives it must take it tainted and infected with undue influence and imposition of the person procuring the gift; his partitioning and cantoning it out amongst his relatives and friends will not purify the gift, and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet if it comes through a polluted channel, the obligation of restitution will follow it.” In Huguenin v. Baseley, 14 Ves. Ch. 289,the same principle was approved, and it was held that interest so gained by third persons cannot be held by them, although there was no personal interference on their part in bringing about the gift by undue influence.

Without further elaboration on this point it must suffice to say that the circuit court erred in giving the second instruction in behalf of the defendant, and should have submitted the question of undue influence to the jury under proper instructions.

III. The remaining question is whether the husbands of Mrs. Rebecca Roberts, Mrs. Sage and Mrs. Riley were competent witnesses. As this cause must be tried again it is proper that their admissibility should be determined at this time. On the part of the defendants it is insisted that these husbands of the nieces of John B. Howell, the testator, were incompetent to testify, because they had no material interest in the estate of John B. Howell, and that they were unnecessary parties to the suit and were made so over the objection of the defendants.

This contention is based upon the decision of this court in Wood v. Broadley, 76 Mo. 23. That was a suit by a daughter to set aside a deed by her father to his second wife, and the husband of the daughter was tendered as a witness in behalf of his wife and was rejected by the circuit court, and the decision of the circuit court was affirmed by this court on the ground that his wife had never been seized of the real estate conveyed by her father to her stepmother, and therefore the husband could have no interest in the said lands as tenant by the curtesy initiate of land of which his wife was never seized, and the decision was distinguishable from the previous case of Steffen v. Bauer, 70 Mo. 405, in which it was ruled in an action by both the husband and the wife to set aside a conveyance made by them of land which had been deeded to the wife, on the ground that it was not acknowledged in compliance with the law, and was signed by the wife under compulsion of her husband, that the husband was a competent witness because, “he had an interest in the issue as well as his wife, since in the event of her death he would be tenant by curtesy, and also had an interest in his wife’s lands during coverture. ’ ’ The point is an interesting one, but we think'that the husbands of these nieces, the plaintiffs in this case, were properly made plaintiffs in the action, and that as the evidence showed that they each had issue born alive, capable of inheriting, and that when John B. Howell died, prima facie, their wives, the plaintiffs herein, inherited the property, of the said John B. Howell in the absence of a will duly executed by the said Howell at a time when he was of sound mind and disposing memory. "We think there is no conflict between the decision in Steffen v. Bauer, supra, and "Wood v. Broadley, 76 Mo. 23. In the Steffen case the wife had a vested interest before her conveyance and that interest continued if her deed was inoperative on account of a failure to comply with the law in her acknowledgment, or was made by compulsion of her husband, and her husband was tenant by the curtesy initiate. In that case the court said: “The plaintiff Steffen was clearly competent to testify’as a party in regard to any fact touching his own interest alone, and so the circuit court held, but he was not allowed to testify on an issue which was supposed chiefly to affect his wife’s interest. It is obvious that he had an interest in the issue as well as his wife, since in the event of her death he would be tenant by the curtesy, and also had an interest in his wife’s lands during coverture.” And the court held that the distinction made by the circuit court was too refined to be of practical use and not authorized under our statutes, and that the husband was a competent witness. In the case at bar the question at issue is whether or not the deceased, John B. Howell, left a will, and as there is no presumption that he did leave a will, it devolves upon the proponents, the defendants in this case, to establish that fact, and until that fact is- established, the inchoate right to curtesy in the lands left by John B. Howell, of the husbands of his nieces, prima facie attached, and they have marital interests in the lands of their wives which can only be defeated by the establishment of a last will and testament by John.B. Howell which deprived them of any interest in his real estate. The question resolves itself into one of the burden of proof. As we hold that the burden of establishing that there was a will rested upon the defendants, the husbands were prima facie entitled to marital interests, and therefore were competent witnesses to testify in the case as parties of the action. [Layson v. Cooper, 174 Mo. 211.] There was, therefore, no error in permitting them to testify.

For the reasons assigned the judgment of the circuit court must be and is reversed, and the cause remanded to the circuit court of Buchanan county to be tried in accordance with the views herein expressed.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. GRAHAM SMITH, Appellant.
    Division Two,
    November 21, 1905.
    1. APPEAL: Criminal Case: No Affidavit Necessary. Under the statute (see. 2696, R. S. 1899) providing for appeals in criminal cases the only condition imposed upon the defendant in order to perfect his appeal is that he shall apply for the appeal during the term at -which judgment is rendered. No affidavit is necessary to the perfecting of an appeal in a criminal case.
    2. STEALING FROM PERSON IN NIGHTTIME: Robbery: Carving Out Offense: Evidence. Although the evidence in a prosecution for stealing from the person in the nighttime, may tend to establish the crime of robbery, yet defendant is not on that account entitled to an acquittal of the crime charged. Robbery from the person in the nighttime necessarily includes the offense of stealing from the person in the nighttime, and defendant cannot complain that the State elected to carve out of the offense of robbery the lesser offense, the essential elements of which were all embraced in the commission of the robbery.
    3. -: Sufficiency of Evidence: Province of Jury. Where there is any substantial evidence to support the verdict of the jury, the appellate court will not interfere. And the evidence in this case is examined and held sufficient to support a verdict finding defendant guilty of stealing from the person in the nighttime.
    4. -: Evidence: Fixing Date: Hearsay. The defense was an alibi, and a witness for defendant testified that on the night of the alleged offense defendant spent the night at a hotel where witness was employed. Held, that the court properly permitted the witness to fix the date from the circumstance that he remembered having paid the porter the next morning, but remarks made to witness by another party employed at the hotel were properly excluded as hearsay and immaterial.
    5. -: -: Cross-Examination. Where a witness testified that he was on watch at a hotel on the night the alleged offense was committed, and that defendant spent that night there, and that he could not have left the hotel without the knowledge of the witness, it was proper to show, on the cross examination of the witness, for the purpose of lessening the force of his testimony, that on one night he failed to obey the rule, and was absent from the hotel for half an hour.

      6. -: Instruction. An instruction set out in the opinion in this case, being a prosecution for stealing from the person in the nighttime, held, to correctly state the law.
    7. -: Verdict. The following verdict held correct: “We, the jury in the above-entitled cause, find the defendant guilty of larceny from the person in the nighttime,- as charged in the information, and assess the punishment at imprisonment in the penitentiary for five years.”
    8. -: Punishment. A sentence of five years’ imprisonment for stealing from the person in the nighttime, the punishment of which is fixed by the statute at from three months in the county jail to seven years in the penitentiary, is not excessive.
    Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.
    Affirmed.

      WilUs H. Ciarle for appellant.
    (1) The court erred in refusing to give appellant’s requested instruction in the nature of a demurrer to the whole evidence, (a) The evidence tended to show that, if guilty at all, appellant was guilty of another and different offense than that with which he stood charged. E. S. 1899, secs. 1893, 1900, 1901; Constitution, art. 2, sees. 22 and 30; State v. Burks, 159 Mo. 568; State v. Brannon, 55 Mo. 63; State v. Pitts, 57 Mo. 85 ; State v. Smith, 119 Mo. 439'; State v. Craft, 72 Mo. 456; State v. Ellis, 74 Mo. 385. (b) Upon the whole evidence appellant was entitled to a verdict of acquittal. State v. Nettles; 153 Mo. 464; State v. Marshall, 47 Mo. 378; State v. Mansfield, 41 Mo. 470; State v. Primm, 98 Mo. 368; State v. Prendihle, 165 Mo. 329; State v. Castor, 93 Mo. 242; State v. Yaeger, 66 Mo. 173; State v. Burgdorf, 53 Mo. 65; State v. Daubert, 42 Mo. 239; State v. Huff, 161 Mo. 459; State v. Crabtree, 170 Mo. 642; State v. King, 174 Mo. 647; State v. Hahn, 87 S. W. 1006; State v. Shelley, 166 Mo. 616. (2) The punishment assessed is excessive, and so grossly excessive as to clearly indicate the existence of passion and prejudice in the minds of the jury against the appellant. State v. Prendible, 165 Mo. 353; State v. Hahn, 87 S. W. 1006; State v. Burgdorf, 53. Mo. 65. (3) The court committed error in the instructions given to the jury. State v. Waller, 174 Mo. 518; State v. Spray, 174 Mo. 569’; State v. Lantz, 184 Mo. 223; State v. Graves, 185 Mo. 713. (4) The verdict is insufficient in form and substance. State v. McGee, 181 Mo. 312; State v. Cronin, 88 S. W. 604; State v. Miller, 88 S. W. 607.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) By reason of the failure to file an affidavit for appeal, it is insisted that there is nothing before this court, and that this cause should be stricken from the docket. State v. Roscoe, 93 Mo. 146; State v. Miller, 189 Mo. 673; Clelland & Co. v. Shaw, 51 Mo. 440. (2) The State’s instructions were correct, and fully and fairly covered the case. All the instructions have been approved by this court. .State v. Yalle, 164 Mo. 550 ; State v. McGee, 181 Mo. 312; State v. Moore, 101 Mo. 326; State v. McGinnis, 158 Mo. 123; State v. Smith, 164 Mo. 584; State v. Adair, 160 Mo. 395. (3) The evidence was sufficient to sustain the verdict; in fact, it is impossible to see how the jury could have done otherwise, if they believed witness Wagner. Whether his testimony should have been believed or disbelieved, was a question for the jury. State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8; State v. Williams, 186 Mo. 128; State v. Harvey, 147 Mo. 69.
   FOX, J.

This is an appeal by defendant from a conviction in the circuit court of the city of St. Louis oí larceny from the person in the nighttime. The judgment in this cause is predicated upon an information filed by the assistant circuit attorney, charging defendant and one William. McHugh with larceny of four dollars from the person of one George Wagner in the nighttime. The offense was alleged to have been committed on November 23, 1903, and the information was duly accompanied by the affidavit of George Wagner. On January 20, 1904, a severance was granted and McHugh was first tried, and convicted. On the next day, January 21,1904, the defendant was put upon trial and convicted.

The testimony on the part of the State may be briefly stated as follows:

This offense is charged to have been committed in the nighttime, about November 23,1903. George Wagner, the prosecuting witness, upon whose testimony the State must chiefly rely for the support of this conviction, testified that on the night above mentioned, he had in his pants pockets between four and five dollars in silver. He details his whereabouts in the city of St. Louis, commencing at about five o’clock in the afternoon, and admits that he had been drinking a little, and that about 12 or 1 o ’clock in the night he visited a house of ill fame at 2024 Chestnut street. This witness states that he knew both McHugh and this defendant by sight and had known them for sometime prior to the time he claims to have lost his money. The prosecuting witness, so he says, left the house of ill fame at 2024 Chestnut street about 3:30 o ’clock in the morning; that after stepping out on the sidewalk he was starting to urinate and McHugh and this defendant crossed the street and he relates the occurrence of the taking of his money about as follows: “They played detectives on me and McHugh says, ‘ What are you doing around here this time of the morning?’ and said to the defendant, ‘Just go ahead and see what he has got on him, arrest him,’ ” and he then states that the defendant held him and McHugh put his hand in his pocket and took the money away from him. As soon as he put his hand in his pocket, the witness says that he called for the police named Mac., and as soon as lie called for him they ran down Chestnut,street and turned the comer and ‘he ran- after them. On the corner of Chestnut and Twentieth street Wagner met the police officer returning with McHugh, whom he had arrested. The following inquiry was made of the prosecuting witness: “Q. Now, then, while McHugh put his hand in your'pocket what did the defendant do or what did he say, if he said anything? A. Nothing at all. As soon as I called for the police they ran.” The prosecuting witness admitted upon cross-examination that he told Sergeant Connors who had arrested McHugh that the man who was with McHugh was a short, stout man, with smooth face. Wagner, the prosecuting witness, further testified that he met the defendant a couple of days after the night of the occurrence in which his money was lost; that this meeting was in a saloon on Twenty-first and Chestnut street; he says that he had no special conversation with the defendant, but that the defendant came into the saloon and said to him, “You know me, don’t you, you son-of-a-bitch; I’ll fix you.” Upon this remark being made Wagner says that he took his drink and went out.

The State introduced the police officer, John J. Connors. His testimony was substantially as follows: I am sergeant of police for the precinct including the district known as Twentieth and Pine and Twentieth and Chestnut. Have known defendant about a year and a half, and McHugh about ass long. Have known Wagner since the arrest of McHugh. I saw Wagner and McHugh that night, about 3:30 in the morning. I and Officer Cuddihee were standing on Twentieth and Pine street, on the northwest comer. We noticed two men come running from the- south — from Chestnut street. They turned in the alley running west toward Twenty-first street between Pine and Chestnut. I sent the officer to follow them up in the alley and went around to head them off on Twenty-first street. Just as I passed a little private alley one of the men was coming north through this little private alley and I immediately turned and started for him and he turned and ran hack again south in the other alley. I hollered to him to halt and just then the officer says, " Throw up your hands, ’ ’ and he run right into the officer’s arms. That man was McHugh. We seen another man, he got. away, we could not see where he went to. We brought McHugh east through the main alley to Twentieth street and then started south with him towards Chestnut and we just got midway between the alley and Chestnut street when Mr. Wagner came up. We took McHugh to the box and locked him up after we got Wagner’s statement. We searched McHugh at the box, I taking four dollars out of his pocket and there was some— the officer searched him at the station. I don’t know exactly what he got. This four dollars was four silver dollars and two halves— two silver half dollars— three silver dollars and two silver half dollars. I did not arrest the defendant. Upon cross-examination he testified: I did not, to my knowledge, see this defendant that night. I have known Smith about a year and a half. He has always worn a mustache during that time, every time I seen him. He was not smooth-faced at any time. He is not a short, stout man. Wagner described the man that was with McHugh as a short, stout man wearing a mustache,, having a mustache, with a black soft hat. I recall he said he was a short, stout, smooth-faced man, smooth face, that’s the way he put it. If I rightly recollect I think I asked him if he had any beard and he told me no, he was smooth-faced. The weather was very slippery and sleety that night, because I fell in the chase. I believe it was the first snow of the season.

Another police officer, Thomas F. Cuddihee, was introduced'by the State; he simply testified as to the arrest of McHugh and the search of him after the arrest, and finding four dollars and ninety-five cents on him, consisting of three silver dollars and two half dollars and ninety-five cents in change.

Frank Akern was introduced by the State and testified substantially as follows: I am a special officer, have no beat, no assignment except as the chief of detectives gives it to me.- I have known this defendant about five years and McHugh about two years. I arrested defendant at Twenty-second and Market in the barber shop. Saw him before that on that day about 10 o ’clock in tbe morning. When I arrested bim be asked me what I was arresting bim for, and I made tbe remark, “Don’t you know?” and be says, “No; in connection with the McHugh case?” I says, “ Tes. ” He made tbe remark be wasn’t right for it. He said be was in a hotel with a woman tbat night. I think tbis was about two days after tbat matter tbat I arrested bim. On cross-examination he testified: I'saw Wagner the next morning after I made tbe arrest, in Chief Desmond’s office. He said be was positive it was Smith, be bad known him a year and a half.

On tbe part of tbe defendant, Judge Hiram M. Moore, judge of tbe St. Louis Court of Criminal Correction, stated tbat be bad beard tbe evidence on tbe preliminary examination of the charge against McHugb and tbis defendant and tbat upon tbe evidence be held McHugb but discharged tbe defendant Smith. Judge Moore stated very clearly tbat be could not remember tbe evidence and gave many good reasons why be could not do so.

Three witnesses, George Freeman, Mollie Biles and Mae Miller, were introduced by tbe defendant, who testified to an alibi. They state tbat on tbe night of tbe alleged larceny appellant was* occupying a room at tbe Windsor Hotel, 2602 Lawton avenue, in St. Louis; that they all remember tbe occasion distinctly; tbat it was tbe night of tbe first snow of tbe season; tbat defendant came to tbe hotel with Mae Miller between 12 and 1 o’clock and tbat be remained in tbe room with her continuously from tbe time of bis arrival until after 7 • o ’clock in tlie morning.

John J. Ford, a witness for defendant, testified substantially as follows: I 'am a member of the police force of this city, attached to the central district as clerk. I remember seeing George Wagner, the prosecuting witness in this case, about the morning of Wednesday before Thanksgiving last. Sergeant Mucklin asked him if he could identify the man that was with McHugh and he said he could, and he sent me up to the rogue ’s gallery on the floor above to show him this gentleman here — his picture — Graham Smith, and he failed to identify the picture, said it wasn’t the man. The supposition was Smith was the man with McHugh, and he failed to identify the picture, said the man was too stout. I showed him the picture and he said it wasn’t the man with McHugh, that the man with McHugh was a smaller man, that Smith was too stout. I showed him other pictures, he looked over several.' Among them was one of Eugene Cunningham, and he identified him as the man that was with McHugh. When he seen Cunningham’s picture he said he was positive he was the man. I don’t know Cunningham, I never seen him. I remember rightly the picture represents a smooth-faced man. On cross-examination this witness stated that there are quite a number of pictures in that rogue’s gallery, thousands of them, I guess. They are in two cases, you pull them out on slides, there is about thirty of them, about twenty pictures in a row and about twenty deep. I don’t know when this picture was taken of Smith, don’t know how long that had been taken in there, don’t know what he weighed when that picture was taken, or what he weighed when he was charged with this offense. Wagner told me he could identify the man if he would see him, he said it was rather hard to identify pictures. I have known the defendant five or six years, I guess. I know him pretty well. I have seen him coming in. He has been arrested several times. I know him just to speak to him. Smith looks about the same as he did the first time I saw him. He has never been convicted of any offense to my knowledge.

This is a sufficient statement of the testimony upon which this cause was submitted to the jury. The instructions complained of will be given consideration during the course of the opinion.

The cause was submitted to the jury upon the evidence and instructions of the court and they returned a verdict finding the defendant guilty of larceny from the person in the nighttime, as charged in the information, and assessed his punishment at imprisonment in the penitentiary for five years. Motions for new trial and in arrest of judgment were duly filed and by the court overruled. Judgment sentencing defendant in accordance with the verdict was entered of record, and from this judgment in proper time and form this appeal was prosecuted to this court, and the record is now before us for consideration.

OPINION.

The first proposition confronting us in this cause is the one embraced in the motion by the Attorney-General to dismiss the appeal of the defendant herein for the reason that the defendant failed and neglected to file any affidavit for appeal in the circuit court after the rendition of the final judgment in this cause in- said court. This motion sharply presents the question as to whether or not, in conferring jurisdiction upon this court, it is an essential requisite that, after the rendition of the final judgment in the circuit court, an affidavit for an appeal must be filed. It is conceded that no affidavit for an appeal as contended for by the representatives of the State, was filed in the circuit court; however, the record does disclose that, at the term of the court at which defendant was sentenced to the penitentiary, he prayed an appeal to the Supreme Court of this State, and the record discloses that an order was duly entered of record granting such appeal.

The right of appeal is concededly statutory; hence, for the solution of the proposition presented by this motion .we must look to the provision of the statute. Section 2696, Revised Statutes 1899, applicable to appeals in criminal cases, provides: “In all cases of final judgment rendered upon any indictment, an appeal to the Supreme Court shall be allowed the defendant, if applied for during the term at which such judgment is rendered.” It will be observed by the provisions of that section that the only condition imposed upon the defendant in a criminal case to perfect his appeal to the appellate court is, that he shall apply for such appeal during the term at which the judgment of conviction is rendered. This condition being complied with, the statute provides that an appeal to the Supreme Court shall be allowed the defendant.

Our attention has not' been directed to any statutes making it conditional to the perfection of an appeal in a criminal case that an affidavit for such appeal should be filed. The statute applicable to appeals in civil cases cannot be made to control appeals in criminal eases, except by some express provisions of the statute making the civil code in that respect applicable to criminal cases, and our attention has not been directed-to any provision of the statute making the civil code of procedure in-, respect to appeals applicable to criminal cases. Section 806 of the code of civil procedure provides for appeals in civil cases from final judgments and other interlocutory decrees therein designated. Section 808 imposes a condition that must be complied with by the party aggrieved by the judgment in a civil case in order to perfect such appeal. It provides: “No such appeal shall be allowed unless: First, it be made during the term at which the judgment or decision appealed from was rendered; and, second, the appellant or Ms agent shall, during the same term, file in the court Ms affidavit, stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment or decision of the court.” The clear and emphatic terms of this section, which is applicable alone to appeals in civil cases, when brought into juxtaposition with the provisions of section 2696, supra, applicable to appeals in criminal cases, unmistakably point to a clear indication on the part of the lawmakers to make a distinction in the imposition of conditions in order to perfect appeals in civil and criminal cases.

The right of appeal must be predicated upon the statute; hence, we look to the statute for the provisions respecting the exercise of that right, and we are forced to the conclusion that, if the lawmaking power of this State intended to make it a condition precedent to the exercise of such an important right, where the life and liberty of a citizen is involved, to file an affidavit, such intention would at least have been as clearly indicated as it is in the' civil code, where simply the property of the citizen is in judgment.

Sections 2625, 2626 and 2640, make provision for the application of the procedure in the civil code to criminal cases in certain respects, but in none of those sections is it indicated that the procedure respecting appeals in civil cases shall be made applicable to appeals in criminal cases.

The terms of section 2696, providing for appeals in criminal cases, are plain and unambiguous; it simply imposes the condition that the application for an appeal shall be made at the term at which the judgment of sentence is rendered. This condition being complied with, there is no discretion in the court to grant or refuse to grant the appeal, but by express provision of the statute the court shall make the order granting the appeal to the Supreme Court. To hold, under the provisions of section 2696, that an affidavit must be filed as a condition precedent, to perfecting an appeal to the appellate court, would, in our opinion, be simply judicial legislation. The right of appeal in a criminal case is a valuable and important one, and this court is unwilling to burden the exercise of such right with conditions which are not clearly indicated or expressly authorized by the provisions of law granting such valuable right.

Our attention is directed to' the cases of State v. Roscoe, 93 Mo. 146; State v. Miller, 189 Mo. 673, and Clelland & Co. v. Shaw, 51 Mo. 440, as supporting the contention of the Attorney-General. It will suffice to say that in the Roscoe case there was no order granting an appeal, and while there is a reference made to the affidavit for appeal being filed in vacation, after the adjournment of the term of court at which final judgment was entered, it is apparent that the question of the necessity of an affidavit for an appeal in criminal cases, in order to give the appellate court jurisdiction, was not discussed, and in fact not considered by the learned judge writing the opinion in that case. The Miller case does not undertake to determine the question; it simply held that, the cause having been submitted upon the record and briefs of counsel, the motion to dismiss was not timely and could not be entertained. Clelland & Co. v. Shaw was a civil case, to which the code of civil procedure was strictly applicable, and it was properly ruled that an affidavit was essential to perfect an appeal: These cases cannot be treated as authority supporting the position that an affidavit is an essential requisite to perfect an appeal in a criminal case.

The motion of the Attorney-General sharply presenting this question was certainly very appropriate, in view of the conflict in the practice of the courts of this State. In the country circuits the universal practice in perfecting appeals conforms to the requirements of the statute applicable to civil cases, and affidavits are invariably filed. In the city' of St. Louis, with few exceptions, the practice has been simply to apply for an appeal during the term at which the judgment was rendered ; hence, it was eminently proper on the part of the representatives of the State to have this important question of practice settled.

We have indicated our views upon the proposition, which results in the conclusion that an affidavit is not essential to give this court jurisdiction of this cause.

This leads us to the consideration of the legal propositions involved in the record before ns.

Numerous errors are complained of by appellant as a basis for the reversal of the judgment in this cause. Learned counsel for appellant in his brief has very ably and fully presented the legal propositions involved in this proceeding, and we shall treat them in the order in which they are presented.

It is earnestly insisted that the court erred in its refusal, at the close of the evidence in this cause, to give appellant’s instruction in the nature of a demurrer to the evidence, directing the jury to acquit the defendant. This contention is predicated upon two grounds; first, that if the evidence tends to show defendant guilty of any offense, it was another and different offense than the one charged in the information; second, that upon the evidence disclosed by the record, defendant was entitled to a verdict of acquittal as requested by the instruction.

The offense charged in the information is stealing from the person in the nighttime, and is based upon one of the subdivisions of section 1900; Revised Statutes 1899. It is insisted by appellant that the evidence in this case, if it tends to show any offense, is that of robbery in the first degree, and that defendant was improperly convicted of the offense charged. We are unable to give our assent to this contention. Let it be conceded that the evidence in this cause does tend to establish the offense of robbery; this does not entitle defendant to an acquittal, if the offense charged can be carved out of the offense proven. If the offense which the evidence tends to prove was that of robbery, it was robbery from the person in the nighttime, and necessarily included the offense charged in the information. Robbery is simply larceny aggravated by the fact that the property is taken from the person of the owner by violence or putting him in fear. It is apparent that the contention of appellant is based upon the doctrine as announced by this court in State v. Ellis, 74 Mo. 385, and the cases following it.

In the Ellis case the offense charged in the indictment was that of incest. Upon the trial the proof tended to show the defendant was guilty of rape. Upon that state of facts the rule was announced that the crime of rape is of a higher nature than that of incest, and that when the evidence proves the commission of rape the party cannot be convicted of incest. This ruling was made upon the doctrine of merger, that the lower offense is merged in the higher crime. In the recent case of State v. Hamey, 168 Mo. 167, the correctness of the rule announced in State v. Ellis, supra, was directly challenged, and this court, in Banc, upon the proposition involved in this case, Gantt, J., speaking for the court, expressly overruled the case of State v. Ellis and the other cases following it. In the Harney case the defendant was indicted in the criminal court of Buchanan county for a violation of section 1838, Revised Statutes 1899, which section provided that if any person over the age of sixteen years shall have carnal knowledge of an unmarried female of previously chaste character, between fourteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished, etc. Counsel in that case, as in this one, insisted that if the testimony established any offense it was that of rape, and hence defendant could not be convicted of the lesser offense with which he was charged in the indictment. This court, responding to the contention of counsel, quoting from Bishop’s Criminal Law (7 Ed.), vol. 1, sec 786, said: “ ‘The doctrine of merger is applicable to two classes of cases, the one, where a criminal act falls within the definition of two or more separate offenses; the other, where offenses are so graded that the less culpable are Included in those involving a larger guilt as shown at section 780 in our last chapter. The general rule is, as there explained, that the prosecuting power may select for conviction any one of those offenses, and the defendant cannot object though his guilt covers also a larger or different one. Merger, in the criminal law, occurs where the same act of crime is within the definition of a misdemeanor and likewise a felony, or of a felony and likewise of a treason ; and the rule is, that the lower grade merges in the higher.’ That is, an act cannot he both felony and a misdemeanor, ‘ a doctrine which applies only where the indentical act constitutes both offenses. ’ Again, in section 791, same volume, he says, ‘Subject to whatever exception may he found in the doctrine of merger, a criminal person may he holden for any crime, of whatever nature, which can be legally carved out of his act. He is not to elect, hut the prosecuting power is. If the evidence shows him to be guilty of a higher offense than he stands indicted for, or of a lower, or of one differing in nature, whether under a statute or at the common law, he cannot be heard to complain, the question being whether it shows him to be guilty of the one charged.’ ”

During the course of the opinion in that case, after fully reviewing all of the authorities upon which the conclusions were based in the Ellis case, it was further said: “In each of these cases it will be seen that the basis of the opinion is that whatever other crime defendant might he guilty of, he was not guilty of the particular crime of incest or seduction, as the facts would not sustain the statutory definition of these offenses, and the decisions are not referable to the technical doctrine of merger as defined by Bishop and other law-writers. Those cases do not determine that one criminal transaction may not present combinations which leave an election in the State in dealing with the offender. Thus, robbery is larceny aggravated by; the fact that goods are taken from the person of the owner by violence or putting him in fear.

“Blackstone, book 4, p. 243, says: ‘Open and violent larceny from the person, or robbery, the rapiña of the civilians, is the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear.’
“In Bonsall v. State, 35 Ind. 462, it was ruled that, where one is indicted for larceny, and the evidence shows he might have been indicted for robbery, and therefore the State has arraigned him for a less aggravated crime than that of which he is really guilty, he cannot complain.
“In Hickey v. State, 23 Ind. 21, the defendant was indicted and convicted for grand larceny, but the proof showed he had committed robbery, and it was argued in his behalf that the conviction was erroneous, but the Supreme Court held otherwise, saying larceny was included in robbery, and, as a general rule, ‘a criminal person may be kolden for any crime, of whatever nature, which can be carved out of his act,’ citing 1 Bishop’s Crim. Law, sections 419, 536, 682; vol. 2, secs. 966, 973, 675, 410, 707; Lewis Crim. Law, 450, 455, 466; People v. McGowan, 17 Wend. 386.
“Applying this principle to the statute before us and granting that the defendant might have been indicted and convicted for rape*, a crime of the most atro^ cious character, which involved a forcible violation of the person of the prosecutrix, how can the defendant complain because the State has elected to prosecute him for a violation of her person under this statute in which it is unnecessary to prove a forcible deflouring of the prosecutrix?
“In what does it differ from a prosecution for larceny when the proof shows robbery, or for manslaughter when the proof shows murder, or for murder in the second degree when the proof shows murder in the first degree?
“Upon mature consideration we are fully satisfied that the construction given this statute in State v. Knock, 142 Mo. 515, was correct, and that the criminal court correctly ruled that proof of force did not entitle the defendant to an acquittal, every essential of the crime being otherwise proven, and it follows that State v. Ellis, 74 Mo. 385, and the cases named which have followed it, should on this point no longer be followed. ”

We find no valid legal reason for departing from the rules so clearly announced in State v. Hamey, supra, and we are unable to conceive any ground of complaint on the part of the appellant, who was charged with stealing from the person in the nighttime, simply because the proof tended to establish that such stealing was aggravated by the fact that the property was taken from the person in the nighttime by violence-. If this defendant was guilty of robbery in the first degree, and-such robbery was committed in the nighttime, there can certainly be no ground of complaint that the State elected to carve out of such offense of robbery a lesser offense denounced by the statute, the essential elements of which were all embraced in the commission of the robbery, and prosecute the defendant for the commission of the lesser crime.

There is no merit in the further contention that defendant was deprived of any of his constitutional rights in failing to apprise him, by the information, of the nature of the accusation against him. Pie is fully informed by this information that the charge he is required to meet is that of stealing from the person' in the nighttime, and whether the larceny charged was committed by force and violence, or otherwise, it is nevertheless fully embraced in the charge in the information. Robbery in the first degree may be committed either in the day or nighttime; if committed in the nighttime, the essential elements of the charge presented in this information are present, and defendant can have no legal ground of complaint that the State has elected to prosecute him for the lesser offense.

It is next insisted by appellant that the evidence in this cause is insufficient to support the verdict. Upon this subject the uniform rule repeatedly announced by this court is, that where there is any substantial evidence upon which to predicate the verdict, this court will not interfere with the result of the triers of the fact. In State v. Williams, 149 Mo. l. c. 500, Burgess, J., speaking for this court, clearly announced the rule as applicable to the contention now under discussion. Speaking of the ground alleged in the motion for a new trial in that case, that the verdict is against the evidence, it was said: ‘ ‘ This contention, however, is wholly without merit, as there was an abundance of evidence to justify the verdict, and even if there was not, this court would not interfere unless there was no substantial evidence of defendant’s guilt, and there is no room for any such contention in this case.”

The verdict in this cause has been approved by thirteen different persons, twelve jurors, presumably fairly selected, returned the verdict, the judge of the court who presided at the trial approved of it, and it would certainly be a very dangerous precedent for this court to establish, if there is any substantial testimony supporting the verdict of the jury, to usurp the province of the triers of the fact and undertake to weigh the evidence and determine the credibility of witnesses from the disclosures made in a lifeless record. To do so would not only be a usurpation of the special province of the jury who tried the case, but would impose a burden upon this court, in every criminal case presented to it, of retrying, from the disclosures of the record alone, the questions of-fact presented to the trial court. This we are unwilling to do, and must adhere to the numerous cases decided by this court announcing the rule upon this subject. In the trial of criminal cases the lower court is confronted with the living witnesses; the various tests as to their credibility and the weight to be given their testimony doubtless are applied, and a verdict reaching this court with the approval of twelve jurymen, presumably fair and impartial, as well as the judge of the court, will not be disturbed if, upon a consideration of the disclosures of the record, there is substantial testimony tending to support the conclusions as reached by the jury. [State v. Dewitt, 152 Mo. 76; State v. Williams, supra; State v. Swisher, 186 Mo. 1. c. 8; State v. Williams, 186 Mo. 128, and numerous other cases.]

The State in this prosecution must rely chiefly upon the uncorroborated statements of the prosecuting witness, George Wagner. We know of no rule which requires any corroboration of his statements in order to support the finding of the jury based upon them, and if the testimony of the prosecuting witness was true, and the jury believed him, that his testimony furnished ample support to the conclusion as reached by the jury, is too plain for discussion. This witness was before the jury; he was fully examined by the State’s counsel and cross-examined by the defendant’s, and it was specially the province of the jury to determine his credibility and the weight to be given his testimony. They had facilities for determining the truth or falsity of his statements that are not afforded the appellate court; therefore, it would be a very unsafe rule, even though this court should conclude that if it had been the trier of the facts it would have reached a different conclusion, to announce that the verdict should be set aside for that reason. While it is true, as urged by counsel for appellant, that the prosecuting witness is contradicted upon some of the phases of his testimony, yet we are again confronted with the well-recognized rule that the entire testimony, including that militating against the truth of the testimony of the prosecuting witness, was before the jury, and the duty specially devolved upon them to determine his credibility and the weight to be given to his testimony.

The prosecuting witness at the trial positively identified the defendant as one of the parties who took his money on the night in question. He was before the jury as well as all the testimony tending to contradict him and lessen the force of his identification of the defendant, and the conclusion is inevitable that the truth or falsity of his testimony was clearly a question to be determined by the jury.

The same may be said as to the testimony of the witnesses for the defendant, upon the defense that he was at another and different place at the time it is charged the money was stolen. The credibility of the witnesses so testifying, and the weight to be attached to their testimony, was a matter exclusively and specially within the province of the jury. They were the triers of the fact, and it was their duty to judge of the credibility of the witnesses and weigh their testimony in connection with the other evidence in the cause. [State v. Swisher, supra; State v. Williams, supra.]

Our attention is next directed to the complaint of error that the court improperly excluded evidence offered by defendant. The first complaint is directed to the examination of witness George Freeman; the error complained of is best indicated by a reproduction of the examination which is as follows:

“Q. Do you recall what night it was — what night of the week? A. Tuesday night. I am almost positive, I can almost swear positively it was Tuesday night.
“Q. What circumstances fixes that in your mind?
“Mr. Maroney: I object to that as immaterial.
‘ ‘ Mr. Clark: If there is any circumstance he knows of.
‘ ‘ Mr. Maroney: There is nobody questioning it so far. He is not called upon to corroborate his own testimony.
“Mr. Clark: He says lie is almost positive it was Tuesday night.
“The Court: He may answer the question.
“A. We had to pay the day porter on Wednesday morning and the maid made the remark to me—
“Mr. Maroney: Just a minute; let the maid testify to what she said. .1 object to the witness testifying to what anybody told him, as hearsay.
“The Court: That is immaterial.”

It will be observed from this examination that the court permitted the witness to refer to any circumstances known by him which would enable him to fix the date inquired about, and the exclusion was only as to the statements of the maid to this witness. These statements were held immaterial. The witness was permitted to refer to the circumstance as fixing the date that the ■day porter had to be paid on Wednesday morning, and that the maid made some remark h> him about it, and we are of the opinion that the court properly ruled that her remarks were immaterial. It will also be observed that counsel for the State suggested that the maid testify herself as to what was said. We are unable to conceive upon what rule of evidence the details of this conversation between two competent witnesses can be predicated. Objection was also made and exception preserved to the ruling of the court upon the cross-examination by counsel for the State of this same witness. The witness testified that he was on watch at the hotel the whole night of the robbery, so that nobody could enter or leave without his knowledge, in obedience to a rule of the hotel, and that neither himself nor appellant left the hotel that night after the time appellant arrived. The cross-examination to which objection is urged is embraced in the following questions and answers:

“Q. Did you always obey the rule? A. Yes, sir.
“Q. Weren’t you talking to me on the comer of Jefferson avenue and Chestnut street one night at ten o’clock for a half hour, with a pitcher in your hand? Isn’t that a fact? A. Yes, sir.
* ‘ Q. That is one night, then, you did vary the rule ? A. Yes, sir.
“Q. It frequently occurs, does it not, that you go out for beer for patrons ? A. I do, yes, sir.
‘ ‘ Q. And you go across to Hine’s place and get the beer and then take it back? A. Yes, sir.
“Q. That was the mission you were on the night you met me at the comer, was it not? A. Yes, sir. ’’

We think it is clear that this was simply legitimate cross-examination. The witness had stated that he always obeyed the rules of the hotel and it was clearly competent, for the purpose of lessening the force of his testimony, to show, by cross-examination, that he did not at all times observe the rules and that he had frequently, on previous occasions, violated them. This was clearly proper cross-examination, and the responses of the witness were matters the jury had the right to consider in determining, not only his credibility, but as well the weight to be attached to the statements he had made in respect to the subject about which he was being cross-examined.

The instruction to which our attention is called and particularly complained of, was as follows:

If you believe and find from the evidence and under these instructions that at the city of St. Louis and State of Missouri, on or about the 23rd day of November, 1903, or at any time within three years next before the filing of the information herein, the defendant, Graham Smith, alias Dorie, either acting alone or with some other person with a common intent with such other person, unlawfully and fraudulently did take, steal and carry away from the possession and from the person of George Wagner, in the nighttime, four dollars, lawful money of the United States, or any part thereof, mentioned in the information, with the intent then and there unlawfully and fraudulently to convert the same to his or their own use and deprive the owner of the same permanently without his consent; and that, said money so taken, stolen and carried away was the property of the said George Wagner and was of some value less than thirty dollars, you will find the defendant, Graham Smith, alias Dorie, guilty of larceny from the person in the nighttime, as charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of not fewer than two years nor more than seven years, or at imprisonment in the city jail for not more than three months; and unless you so find the facts you will acquit said defendant. ’ ’

It is sufficient to say that this instruction is substantially the same in form as the one challenged in the case of State v. Sakowski, 191 Mo-. 635-. In that case the instruction met the approval of this court, and following the conclusions therein announced, results in ruling adversely to appellant’s contention, respecting the instruction complained of. [See, also, State v. Speritus, 191 Mo. 24.]

It is next insisted by appellant that the verdict is insufficient in form and. substance. The verdict in this case, following the style of the case, was as follows: “We, the jury in the above-entitled cause, find the defendant guilty of larceny from the person in the nighttime, as charged in the information, and assess the punishment at imprisonment in the penitentiary for five years. ’ ’

This verdict fully meets the requirements of a proper verdict as announced in the case of State v. McGee, 181 Mo. 312, and is also in harmony with the ruling of this court in case of State v. Bohle, 182 Mo. 58.

Finally, it is contended by appellant that the punishment assessed by the jury is excessive, so much so that it indicates that it was the result of passion and prejudice. The punishment designated by the statute to be assessed by the jury upon their finding of guilty, ranges from three months imprisonment in the county jail to seven years imprisonment in the State penitentiary. The lawmaking power of this State having prescribed the pnnishment for an offense, the appellate courts, upon finding that a verdict is supported by at least some substantial evidence, should approach the question of setting aside the verdict of a jury, for the sole reason that it was the result of passion and prejudice on their part, with a great deal of care and caution, and unless the record indicates that the conclusion reached by the jury was the result of passion and prejudice, rather than of a calm, dispassionate consideration of the evidence in the cause, their verdict should not be disturbed.

We have carefully considered in detail the disclosures of the record in this cause, and there is an entire absence of any indications of misconduct on the part of the jury or any evidence that their passions or prejudices were aroused during the progress of the trial, and confronted by this record, we are unwilling to say, from the mere fact that by their verdict they assessed a severe punishment upon the defendant, the conclusion reached by them was the result of passion and prejudice.

We have thus indicated our views upon the legal propositions presented by the record before us in this cause, and finding no errors which would warrant this court in disturbing the judgment rendered, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.