text:
    THE STATE v. CARLISLE GRIFFIN, Appellant.
    Division Two,
    June 3, 1919.
    1. VERDICT: Special: Essential Elements. A special verdict should find all the essential elements of the offense charged, and if it fails to do so it will not support a judgment.
    2 -: -: -: Concealing Mortgaged Chattels. A verdict reciting that “we, the jury in the above entitled cause, find the defendant guilty of feloniously, wilfully and unlawfully removing and concealing personal property, covered by a chattel mortgage, and assess the punishment at six months in jail,” is a special verdict, and bein'g such is insufficient to support a judgment, since it fails to find all the essential elements of the offense, among others that the act was done “with intent to hinder, delay or defraud the mortgagee,” an element made essential by the statute (Sec. 4570, R. S. 1909).
    3. INSUFFICIENT EVIDENCE: When Defendant Will Be Discharged. When the record upon appeal is such as to make it reasonably apparent that evidence sufficient to sustain a conviction cannot be produced upon a retrial, defendant will be discharged or ordered discharged; but where the question is* close or debatable, and it cannot be foreseen what evidence a retrial will bring forth, the . defendant will not be discharged, but the judgment will be reversed and the cause remanded.
    Appeal from St. Louis City Circuit Court. — Hon. John W. Calhoun, Judge.
    Reversed and remanded.

      Frank C. O’Malley for appellant.
    (1) Instruction 3 is erroneous because there is no evidence whatever of intent in this case, and the intent is not to be presumed, but must be proved like any other issue in the case. (2) The verdict of the jury in this case is insufficient to support the conviction because it is a special verdict and fails to find all of the elements of the alleged crime, and is not responsive to the information. (a) It fails to find whether the defendant removed or concealed a Ford touring car, hut finds him guilty of concealing “personal property.” (b) It fails to find the value of the alleged personal property. (c) It fails to find that the removal and concealing was done with the intent to hinder, delay or 'defraud. (d) In failing to find the value of the property it fails to find whether defendant is guilty of a felony or misdemeanor. (e) It finds the defendant guilty of removing and concealing, whereas the statute does not define any such crime, but does define the crime of removing or concealing, and by this verdict defendant is convicted of either or both. Sec. 4570, R. S. 1909; State v. DeWitt, 186 Mo. 61; State v. Cronin, 189 Mo. 663; State v. Grossman, 214 Mo. 233; State v. Holland, 162 Mo. App. 678; State v. Gibson, 111 Mo. 92; Pinson v. Campbell, 124 Mo. App. 260 ; State v. Pierce, 136 Mo. 34; State v. Reeves, 208 S. W. 87; State v. Jones, 114, Mo. App. 343; State v. Pollock, 105 Mo. App. 273. (3) The court erred in not sustaining defendant’s demurrer to the evidence. State v. Miller, 255 Mo. 223; State v. Fowler, 265 Mo. 190; State v. Miller, 234 Mo. 588; State v. Bass, 251, Mo. 107; State v. King, 174 Mo. 6-47; State v. Jones, 106 Mo. 302.

      Frank W. McAllister, Attorney-General, and S. E. Shelley, Assistant Attorney-General, for respondent.
    (1) The evidence in this case is sufficient to establish the corpus 'delecti. (a) Full proof of the corpus delecti independent of corroborating circumstances thereof is not required. 16 C. J. 772; State v. Patterson, 73 Mo. 712; State v. Coats, 174 Mo. 417; State v. Wooley, 215 Mo. 672; State v. Knowles, 185 Mo. 176; State v. Henderson, 186 Mo. 484; State v. Young, 237 Mo. 177; State v. Skibiski, 245 Mo. 463; State v. Vinton, 220 Mo. 98. (b) Admission, declarations apd confessions may be considered in connection with other independent evidence in determining whether the corpus delec'ti is sufficient proved. 16 C. J. 772; State v. Cox, 264 Mo. 413; State v. Knowles, 185 Mo. 176; State v. Coats, 174 Mo. 417. (c) “Concealing” mortgaged property is an intentional handling and shifting of same in such a manner as to mislead or confuse the mortgagee in his efforts to find it. State v. Taylor, 90 Kan. 443; State v. Miller, 74 Kan. 667; Clement v. Dudley, 42 N. H. 367; State v. Ward, 49 Conn. 429; Polk v. State, 60 Tex. Crim. 150. (d) There is no invariable rule as to the quantity of proof necessary to establish the corpus delecti, and each case must depend in a measure on its own .particular circumstances. 16 C. J. 773; People v. Goodwin, 263 111. 99. (e) Particular intent may be proved by direct or circumstantial evidence. 16 C. J. 774; Kelly, Crim. Law & Procedure, sec. 244. (f) It is for the jury to say whether the corroborating facts and the confession or admission taken together excludes from their minds all reasonable doubt of the defendant’s guilt. State v. Skibiski, 245 Mo. 464; State v. Patterson, 73 Mo. 713; State v. Coats, 174 Mo. 417; State v. Lamb, 28 Mo. 231.
   WILLIAMS, P. J.

In the Circuit Court of the City of St. Louis, defendant was tried and convicted of the crime of removing’ and concealing personal property covered by chattel mortgage. The punishment was fixed at six months’ imprisonment in the city jail, and defendant has duly perfected an appeal.

The evidence upon the part of the State may be summarized as follows:

In May, 1916, the Weber Motor Car Company, a corporation located, at 2217 Locust St., St. Louis, Mo., sold to the defendant for the sum of $300, one secondhand Ford automobile. Defendant paid $125 in cash and gave his notes for the balance, securing the same by a chattel mortgage on the automobile. By subsequent payments defendant reduced the mortgage indebetedness to the sum of $126.27. In May, 1917, after having written numerous letters to defendant concerning the payment of the balance then overdue, representatives of the mortgagee called upon and talked to defendant at his place of business on Delmar Avenue. They requested that defendant either pay the balance of the mortgage indebtedness or surrender the car. He replied that he could neither pay the notes nor deliver the car. He finally said that he would give up the car, and that it would be found at the back of his residence on Pendleton Avenue. The representatives of the mortgagee then went to defendant’s residence and made ax search of the premises, but were unable to find the car. A short time thereafter a representative of the mortgagee again called upon defendant, demanding either the money or the car, and in that conversation told the defendant that the mortgagee had been unable to find the car at defendant’s residence, the place where defendant told them it could be found. Defendant then said: “I cannot tell you where the car is, I do not know. ’ ’

Defendant did not offer any evidence. The jury returned the following verdict:

“We, the jury in the above entitled cause, find the defendant guilty of feloniously, willfully and unlawfully removing and concealing personal property, covered by a chattel mortgage, and assess the punishment at six months in the city jail.”

I. Appellant contends that the verdict is insufficstrPPort the judgment, in that it is a special verdict and fails to find all of the elements of the alleged crime. The learned Attorney-General confesses error in this regard.

We aré of the opinion that the point is well taken. The verdict is a special verdict. [State v. Modlin, 197 Mo. 376.] Being a special verdict is should find all the essential elements of the offense. [State v. Bishop, 231 Mo. 411.] One of the essential elements of the offense is that the act must have been done “with intent to hinder, delay or defraud such mortgagee.” [Sec. 4570, R. S. 1909.]

The verdict is also defective in other respects, but the foregoing is sufficient to'show the insufficiency of the verdict, and, to cause a reversal of the judgment,

II. Appellant further contends that the evidence is insufficient to sustain a conviction of the alleged offense and that therefore the judgment should be reversed and the defendant discharged.

When the record upon appeal is such as to make it reasonably apparent that evidence sufficient to sustain a conviction cannot be produced upon a retrial it is and should be the practice to order the defendant discharged; otherwise, the cause should be remanded to be tried anew, if the officers charged with that duty deem further prosecution of the cause advisable. [State v. Elsey, 201 Mo. 561, l. c. 572.] Whether the evidence in the present record is sufficient is rather a close and debatable question. What evidence a retrial may bring forth we have no way of knowing. We think the facts shown by the present record are at least not such as to make it reasonably apparent that a case cannot be made. It therefore follows that the judgment should be reversed and the cause remanded.

It is so ordered.

All concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. ERNEST BURNS, Appellant.
    Division Two,
    June 3, 1919.
    1. EVIDENCE: Hearsay Statements of Deceased’s Wife. Statements of deceased’s wife, made several minutes after lie was shot and after the neighbors had come in, that a man who would act like her husband had should not be put on her bed, but that if he would explain to the crowd why he had done as he had, and was justified, she would let him be put on her bed, but she would not if he didn’t, were hearsay, were not res gestae, tended to show her partiality for the defendant and tended to prejudice the jury against him, and their admission was reversible error. ■
    2. -: Res Gestae. In order that a statement or an act may be admissible as res gestae, it must be undesigned, instinctive, spontaneous, and arise out of an incident it seeks to describe. Statements by deceased’s wife, made several minutes after her husband was shot and after the neighbors had come to the scene, are not res gestae.

    3. INSTRUCTION: Presumption: In Presence of Evidence. An instruction telling the jury that, if defendant intentionally killed deceased by shooting him with a pistol, the law presumes such killing was murder in the second degree, is not permissible in the presence of evidence. Presumptions are invoked only when evidence is lacking.
    4. -: Self-Defense: Voluntarily Entering Difficulty. An instruction which tells the jury that if defendant voluntarily engaged in the difficulty, the right of self-defense is not available to him, no matter atiwhat point or under what circumstances his voluntary action commenced, entirely takes away the right of self-defenses, and is erroneous.
    5. ' EVIDENCE: Uncommunicated Threat. A threat made by deceased against, but not communicated to defendant is admissible in evidence, as throwing light upon the conduct of deceased at the time they began shooting at each other and as showing whether deceased was the aggressor.
    6. INSTRUCTION: Manslaughter: No Provocation. Where there is no circumstance showing a provocation which would reduce the homicide to manslaughter in the fourth degree short of the' evidence which would justify it altogether, no instruction for manslaughter in the fourth degree, should be given; and the driving, of defendant out of deceased’s house, with opprobious words and threats, there being no evidence that he was aroused to a frenzy of passion "which for the moment obscured his reason, does not constitute provocation.
    7. - :-: Self-Defense: Apprehension: Accidental Discharge of Pistol. If deceased drove defendant out of his house, with a drawn weapon and curses, and with such threatening demeanor as to cause a reasonable belief that he was going to shoot, and defendant, in his excitement, in picking up his automatic pistol from his automobile, accidentally discharged it, and thereafter deceased fired, either in pursuance of original intention or because of the discharge of defendant’s pistol, and defendant thereafter fired for the purpose of protecting himself, he was acting in self-defense, and was entitled to an acquittal, and there was no room in the case for an instruction for manslaughter in the fourth degree.
    8. -: -: Perfect Self-Defense: Apprehension. If defendant fired his first shot intentionally with a reasonably induced belief that his life was in danger from deceased’s weapon, he was not thereby deprived of perfect self-defense.
    9. -: -: Murder or Innocent. If the evidence shows that defendant was either guilty of murder or was not guilty at all, no instruction for manslaughter in the fourth degree is warranted.
    Appeal from Pemiscot Circuit Court. — Eon. Sterling H. McCarty, Judge.
    Reversed and remanded.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) Tiie giving of the concluding portion of instruction 1 was error. As the shooting was detailed by eyewitnesses, there was no room for presumptions. State v. Solan, 207 S. W. 783; State v. Frame, 204 S. W. 10; State v. Willard, 192 S. W. 439; State v. Swearengin, 269 Mo. 186. (2) Instruction 2, on self-defense, is erroneous. State v. Rapp, 142 Mo. 447; State v. Hopper, 142 Mo. 482; State v. Walters, 356 Mo. 134; State v. Higgerson, 157 Mo. 401; State v. Patterson, 159 Mo. 561; State v. Garrett, 170 Mo. 897; State v. Gordon, 191 Mo. 126; State v. Feeley, 194 Mo. 321, 322; State v. Eastham, 240 Mo. 252; State v. Partlow, 90. Mo. 608; , State v. Gilmore, 95 Mo. 560. (3) The motion for new trial does not specifically assign error for that the court failed to give an instruction on manslaughter in the fourth degree. Hence, this question is not before the court. State v. Levy, 262 Mo. 190; State v. Douglas, 258 Mo. 296; State v. Lewkowitz, 265 Mo. 636; State v. Katz, 266 Mo. 504; State v. Horton, 247 Mo. 663. (4) The statements of the wife of deceased made after the killing, and out of the presence of appellant, were erroneously admitted. State v. Coleman, 186 Mo. 160; State v. Brown, 188 Mo. 464; State v. Sherman, 264 Mo. 380. (5) There was substantial evidence upon which to base the verdict of the jury and judgment of the court. It is no ground for setting aside0 the verdict of the jury that it may be against the evidence. State v. Scott, 214 Mo. 261; State v.' Yandell, 201 Mo. 662; State- v. Espenschied, 212 Mo. 223.
   WHITE, C.

The appellant on a trial in the Circuit Court of Pemiscot County was convicted of murder in the second degree, and appealed. One A. P. Bumpas was the victim of the homicide. The trouble between the two men arose out of the defendant’s alleged attentions to the wife of Bumpas.

Mrs. Bumpas had charge of the post office at the town of Cooter in Pemiscot County. The defendant, Burns, was a mail carrier, and his route lay through Cooter, where the homicide occurred September 27, 1917. He carried the mail in his automobile. The two families of Bumpas and Burns were on friendly terms; and both men and their wives and children were at times-taken for a ride in Burn’s car. Previous to the time of the homicide the deceased had complained about Burn’s attention to his wife, although he always said that nothing improper had occurred between them.

Burns was scheduled to leave Cooter at 3:10 each afternoon, and he usually arrived at that' post office about two p. m. During the hour or more while he remained there he was in the post office, usually alone with Mrs. Bumpas, the children being away at school. Nothing unusual was ever noticed in his conduct at such times. In April, prior to the homicide, he took Mrs. Bumpas to Caruthersville in his car, where she went to see a dentist, starting early in the morning, and returning about 1:30. A conversation occurred between Bumpas and the defendant in relation to that trip, in which, as defendant’s testimony tends to show, the deceased apologized for becoming excited about it. The deceased made various threats against the life of Burns, some of which were repeated to him a short time before the killing occurred. Bumpas was unsettled in his mind regarding the affair, and was torn between jealousy, and regret for what he sometimes confessed to be unjust suspicion. This appeared in his talk with other persons. . ■

On September 27th Burns arrived as usual with the mail. Bumpas was at the time in the back yard, working on some kind of a building. Mrs. Bumpas was in the post office preparing the mail bags for delivery to Burns; two small daughters of Bumpas, Mary Lou, ten years of age, and Helen, seven years of age, were at the time in the house, in the rooms in the rear of the post office. No other persons were in or immediately near the post office. Several other witnesses testified to seeing some of the incidents of the tragedy from other points of view up and down the street in front. The-two little girls testified for the defendant that their father came in from the back yard, went to his trunk in his bed room and took a pistol from it, and walked with- it into the post office where Mrs. Bumpas and Burns wer¿. Bumpas then ordered Burns to get out, and thereafter to put the mail on the porch and not come into the office. Mrs. Bumpas did not testify, and nothing further is shown of what occurred in the post office. The next that appears in the testimony was when Burns came out of the post office to where his car stood about eight feet from the post office door, carrying the mail bags. Some witnesses stated that he had an automatic pistol in his hand; others stated that he had nothing in his hand except the mail bags. He went around his car to the opposite side for the purpose of depositing the mail bags in it. There was some evidence to show that at that time Bumpas was heard to order him hereafter to throw the mail bags on the porch and stay out of the post office. Burns said he answered that he was under bond to deliver the mail in the post office and was going to do it. ' Bumpas then was heard to say, “You will play hell, too,” and turned and went back into the post office. Some of the witnesses heard the remarks of Bumpas, but did not hear what Burns said.

Next Burns was seen dodging around his car with his revolver in his hand. He stated that he got it out of the car after he went out. Immediately a shot was fired from a weapon of small calibre. Burn’s revolver was a 32 automatic. At that time Bumpas was not in sight of the witnesses in front of the post office, and Burns swore that the first shot was accidental; that he picked up his automatic with his left hand and that it was discharged by accident. Almost immediately a shot from a weapon of larger calibre was heard. -It was afterwards shown that Bumpas had a revolver of larger size in his hands and an empty cartridge was found in one of its chambers. • Immediately in rapid succession Burns fired twice, and one of the shots struck Bumpas in the side above the hip, and he sank to the floor. According to some of the testimony he was still trying to get a shot at Burns when witnesses appeared on the scene to pick him up. These witnesses asked the defendant not to leave right away, and he told them to take the gun away from Bumpas and he would not leave. Burns cranked his car immediately and went away. When the witnesses arrived they found Bumpas on the floor. Mrs. Bumpas refused to allow him to be put on the bed. It was shown over the objection and exception of the defendant that- she said he should not he put on her bed; a man that would act like he had. If he wpuld explain to the crowd why he had done that, and he was justified, she would let him be put on the bed, but she would not if he didn’t.

Bumpas was taken to Memphis, where he was operated on and died in a day or two.

I; Error is assigned to the admission by the court of the statement of Mrs. Bumpas explaining why she refused to let her wounded husband be put on her bed. This statement was clearly hearsay. While ^ie matter of the statement tended to exculpate the defendant and put the blame of the encounter upon her husband, it further tended to show her partiality for the defendant and would undoubtedly have a tendency to prejudice the jury against him. Mrs. Bumpas was not a witness, and it was not admissible for the purpose of showing her bias in the case. It was not res gestae, and incompetent on any theory. In order that a statement or an act may be admissible as res gestae it must be undesigned, instinctive, spontaneous, and arise out of the incident which it seeks to describe. [State v. Reeves, 195 S. W. l. c. 1030, and eases cited.] The statement of Mrs. Bumpas occurred several minutes after her husband was shot and after the neighbors had come in. It was her deliberate explanation of her attitude in the matter. It was, in fact, an argument showing why she did not want her wounded husband placed on her bed.

II. The court in the instruction upon murder in the second degree correctly defined the crime, but concluded the instruction with these words:

“Second: The court further instructs you that if you find from the evidence that the defendant Ernest Burns intentionally killed the deceased by shooting him with a loaded pistol in the manner set forth in the foregoing instructions, and that such pistol was a deadly weapon, then the law presumes that such killing was murder in the second degree, in the absence of proof to the contrary, and it devolves upon the defendant to meet or repel that presumption, unless such presumption is met or repelled by the evidence introduced on behalf of the State.”

This instruction regarding presumption of guilt in trial for murder in the second degree is never “permissible when the evidence shows what the facts are as it did in this case. “Presumptions are invoked only when evidence is lacking.” [State v. Swearengin, 269 Mo. l. c. 186; State v. Willard, 192 S. W. 439; State v. Frame, 204 S. W. l. c. 10; State v. Solan, 207 S. W. l. c. 783.] It was error therefore to give that instruction in that form.

III. The court in an instruction defining self-defense concludes with this qualification:

“Now, if you believe from the evidence in this cause, that the defendant voluntarily sought or invited the difficulty in which said A. P. Bumpas lost his life, or he provoked, or commenced, or brought it on by any willful act of his own, or that he voluntarily and of his own free will engaged in it, then, and in that case, you are not authorized to acquit him on the ground of self-defense, and this is true no matter how violent his passion became, or how hard soever he was pressed, or how imminent his peril became during the progress of the affray. In determining who provoked or commenced the difficulty, or made the first assault, you should take into consideration all the facts and circumstances in evidence before you.V

That instruction is erroneous, because it takes away entirely the right of self-defense. It asserts that if the defendant voluntarily “engaged in” the difficulty the right of self-defense is not available to him, no matter at what point or under what circumstances his voluntary action commenced. This instruction is quoted .literally from the instruction copied in the opinion in the ease of State v. Eastham, 240 Mo. l. c. 251, and there in effect condemned. [State v. Rapp, 142 Mo. l. c. 447; State v. Hopper, 142 Mo. l. c. 482; State v. Feeley, 194 Mo. l. c. 321-2.]

IV. The defendant offered the testimony of one Brooks to show a threat made by Bumpas against Burn's which Vas not communicated to Burns, and this was excluded. This evidence was proper as throwing light upon the conduct of the deceased at the time of the killing and showing whether he was the aggressor. [State v. Edwards, 203 Mo. l. c. 546.]

Y. Appellant claimed that the trial court committed error in failing to -instruct the jury authorizing a conviction of manslaughter in the fourth degree. The evidence did not warrant the giving of such an instruction.

There are several inferences that may be drawn from the evidence. The one most unfavorable to the defendant was that, incensed by the language of the deceased, he drew his revolver "and commenced firing before Bumpas went into the house to secure a weapon and in the subsequent exchange of shots he killed Bum-pas. Another is that Bumpas drove him out of the house with curses and threats and with a drawn weapon which, however, he did not use until after the defendant had fired the first shot. Another version, still more favorable to the defendant, the one supported by his testimony and some other circumstances, was that Bumpas drove him out of the house with a drawn weapon and with curses and with such threatening demeanor as to cause a reasonable belief that he was going to shoot; that defendant in his excitement, in picking up his automatic discharged it accidentally, and thereupon Bumpas fired, either in pursuance of original intention or because of the discharge of defendant’s'weapon. The defendant thereafter fired for the purpose of protecting Ms own life. In such case he was acting in self-defense and was entitled to an acquittal on that ground. Even if defendant fired his first shot intentionally with reasonably induced belief that his life was in danger from Bumpas’s weapon, he was not thereby deprived of the right of perfect self-defense.

There are no ■ circumstances showing a provocation which would reduce the homicide to manslaughter in the fourth degree short of the evidence which would justify it altogether. If Bumpas did drive him out of the house with opprobious words and threats the provocation was not sufficient. [State v. Sharp, 233 Mo. l. c. 290; State v. Barrett, 240 Mo. l. c. 169; State v. Vest, 254 Mo. l. c. 465-6.] There was no evidence to show that the defendant was aroused to any frenzy of passion which would obscure for the moment his reason. There was no assault upon the defendant nor attempted assault upon him except with a weapon which would have produced death and justified Mlling in self-defense. Defendant was either guilty of murder or he was. not guilty at all. The only evidence of excitement on his part was his own statement that the deceased came out with his gun, threatening to Mil him if he didn’t go away, and defendant’s hat almost fell off because in his fright his hair raised it from his head. In that case, if that were true, and the appearance was sufficiently reasonable to warrant the belief that Bumpas was about to Mil him, his self-defense was perfect and' an instruction on manslaughter unnecessary. There is no .room 'for a qualified self-defense which would reduce the offense to manslaughter as defined in State v. Eastham, 240 Mo. l. c. 252. If defendant brought on the difficulty it was with a felonious intent, for his first hostile act was to fire-a deadly weapon at Bumpas.

The Attorney-General confesses error in the case, and for the errors noted above the judgment must be reversed. There is, however, sufficient evidence to warrant a submission of the cause to the jury and for that reason the cause will be remanded.

Boy, C. absent.

PER CURIAM:

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

Williams, P. J., and Paris, J., concur; Walker, J., dissents.


author: PARIS, J.

text:
    GARY REALTY COMPANY v. E. P. KELLY et al., Appellants.
    Division Two,
    June 3, 1919.
    1. WAIVER: Trial By Jury: Amendment of Complaint: Unlawful Possession. Material changes in the pleadings hy amendment, after a stipulation waiving trial by jury has been iiled, ordinarily nullifies such waiver. But an amendment of a complaint charging holding over of the possession of the premises wilfully and without force after the expiration of the lease term, by inserting an allegation of the value of the monthly rents and profits, does not nullify the waiver, for such allegations does not constitute a material change in the complaint.
    2. UNLAWFUL POSSESSION: Complaint: Material Allegations: Monthly Rents. Neither’the forms in common use, nor the statutes, nor the adjudicated cases, require a specific allegation as to the value of the monthly rents and profits, or any prayer for a finding of the same, in a complaint charging unlawful possession . and detainer; and no amendment adding an allegation of the value of the monthly rents and profits is a material change in the complaint.
    3. PRE-JUDG-INGr CASE: Unlawful Detainer: Termination, of Lease: Waiver. In the trial of a case of unlawful detainer by the judge sitting as a jury, a ruling by him in the midst of the trial that the appointment of a receiver constituted, by its terms, a termination of the lease, absent waiver, was not a pre-judging of the case, but a construction of the lease by him as a judge, and not as a jury, and left the question of a waiver of the breach, pleaded by defendant, thereafter to be resolved upon the facts adduced by the testimony, as the judge at the time announced would be done, and was done.
    4. UNLAWFUL DETAINER: Termination of Lease: Waiver: Substantial Evidence. Whether the facts in evidence established a waiver of the condition upon which the lease by its terms was to terminate was a question to be resolved by the trial judge sitting as a jury, and if bis finding was supported by substantial evidence it will not be disturbed on appeal. ,
    5. LEASE: Forfeiture: Waiver: Receivership. A five-year lease contained a clause that “in case the lessee goes into receiver’s hands, this lease shall become void and the remaining portion of the term shall revert to the lessor.” After the lease had run nine months a receiver of the lessee was appointed by the circuit court, who took into his possession all the property of the lessee. Eight days later the lessor gave written notice both to the lessee and the receiver that the lease had been terminated by the appointment of the receiver, but in the notice expressed a willingness to permit the receiver to remain in possession for the time being as a month-to-month tenant. Thereafter the receiver called on the lessor’s agent and agreed to become a tenant by the month, and paid the rent for a month in advance, but before the end of the month the lessor gave notice to the receiver to vacate on or before the last day of the next month, but the receiver refused to vacate and tendered checks for the rent for the next two months, which were refused. Held, notwithstanding no valid agreement could be made with the receiver for a month-to-month tenancy, since the court appointing him could alone make a valid contract affecting the property in his hands, there was no waiver by the lessor of the condition broken, and no intention to waive, nor was there any acquiescence in the receiver’s possession under the lease.
    6. WAIVER: Constant Denial. No one can be deemed to have waived a right when every act he does and every word he utters constitute a denial of a waiver thereof, and a denial of any intention to waive; especially when this attitude is fully disclosed to and known at all times by the party claiming waiver.
    7. APPEAL: Rules Applicable to Assignments. Rules governing an appeal are that error will not be presumed; that a mere assignment of error is not sufficient to convict the trial court of error; that to the acts of the trial court, naught else appearing, the presumption of correctness attaches, and upon him who alleges error the burden of establishing it rests.
    Appeal from Jackson Circuit Court. — Hon: Thomas B. Buckner, Judge.
    Affirmed.

      Frank M. Lowe for appellants.
    (1) It was error, under all the circumstances in this case as disclosed by the record, to deny appellants a jury trial. McGeagh v. Nordberg, 53 Minn. 235; Burnham v. Ry. Co., 88 Fed. 627; Chicago Ry. Co., v. McGrew, 113 Mo. 393. (2) The finding and judgment of the court are against the law and the evidence, and the court erred in holding that the appointment of a receiver ipso facto made ’void the lease, (a) The law does not support the rule of court below in holding that the appointment of a chancery receiver ipso facto determined the lease. Pa. Steele Co, v. New York Ry. Co., 198 Fed. 728; Taylor on Landlord and Tenant (9 Ed.), sec. 136a, p. 167; Durand & Co. v. Howard & Co., 216 Fed. 585; State v. Reynolds, 209 Mo. 161; Smith v. Miller, 49 N. J. L. 524. (b) The receiver could not enter into a new contract from month to month and bind the court without the sanction and order of the court. St. Joseph Gas Co. v. Barker, 243 Fed. 206. (c) If the appointment of a receiver did make void the lease then and in that case respondent waived the breach by accepting rent from the receiver. Garnhart v. Finney, 40 Mo. 449; William v. Vanderbilt, 145 111., 2'38; Kenny v. Seu Si Lun, 101 Minn. 253; Guptill v. Macon Stone Supply Co., 140 Ga. 696. (d) If we are wrong in the above provisions then' we are entitled to have our contention sustained for the reason that respondent has failed to prove that there was a month to month lease entered into. (3) The verdict is excessive and no evidence was introduced of any damage having been sustained by respondent. It is hardly necessary to emphasize this proposition in the face of the fact that the word “damage” was' never mentioned to any witness and no testimony was offered that in the remotest fashion warranted the court in giving a judgment for $2000 against appellants. (4) The finding and judgment of the court was clearly the result of bias and prejudice .of the court against these appellants. (5) The court erred in permitting respondent to file the stipulation waiving a jury that had been entered into at the November term of court and which had since been withdrawn by motion of appellants.
    Cooper, Neel <& Wright for respondent.
    (1) The jury waiver was binding. Sec. 1970, R. S. 1909; Thompson v. King-, 173 Mass. 442; Alcorn v. Dennis, 105 Pac. 1012. (a) Exactly the same causes of action embraced in the two counts of the amended complaint were merged in the original. Shantz & Kroff v. Reynolds, 70 Mo. App. 668; Bradford v. Tilley, 65 Mo. App. 181. (b). In the first complaint we charged that the complainant had possession on the date the unlawful detainer began, because, although the appellants were in actual possession, holding over under claim of assignment by the lessee, the tenant's .possession is that of his landlord, and when the tenant, at the expiration of his term, relets and leaves tbe premises or surrenders his lease, the landlord is considered as resuming possession immediately though not actually present on the land. Kaulleen v. Tillman, 69 Mo. 510; May v. Luckett, 48 Mo. 472'; Prendergast v. G-raverman, 166 Mo. App. 39. (c) The next amendment was increasing the amount of damages asked for in the ad damnum, clause to the extent of $3000. Such an amendment was clearly permissible, but to avoid any room for argument we withdrew it at «the trial. Such re-amendment as to the amount of damages asked cured the change in that respect, if such change was material, (d) And it is wholly immaterial that the amended complaint stated the monthly value of the rents and profits and in its prayer specifically prayed recovery thereof, while the original complaint did not, for Sec. 7674, R. S. 1909, was mandatory upon the court to allow and render judgment for such damages in the absence of any prayer therefor in the complaint. Moore v. Dixon, 50 Mo. 425; Nelson v. Alporte, 161 Mo. App. 608; Hixon v. Selders, 46 Mo. App. 277; Bierkenkamp v. Bierkenkamp, 88 Mo. App. 449; Coles v. Foley, 13 Mo. App. 253; Balch v. Myers, 65 Mo. App. 428. (2) If the lea^e was terminated ipso facto, as we think -it clearly was, by the appointment of a receiver, all doors to argument are closed to appellants. For it becomes immaterial whether there was a month-to-month tenancy or not, and whether respondent accepted rent. No waiver by acceptance of rent could reinstate the void lease, but a wholly new agreement, express and in writing, which is absent in this case, would be necessary for that purpose under Sec. 7883, R. S. 1909. All arrangements between the respondent and the receiver being verbal, would at the most create a tenancy, which respondent could and did terminate by the statutory month’s notice, (a) Termination clause is applicable to a chancery receiver. 5 Cyc. 246-12; In re Fixen, 96 Fed. 748; Cox v. Wall, 99 Fed. 546; G-albraith v. Wood, 124 Minn. 210; Louis K. Liggett v. Wilson, 224 Mass. 456. (b) Appointment of receiver ipso facto terminated lease. 1 Bouvier’s Dictionary p. 585; 2 Tiffany, Landlord & Tenant, par. 194c, p. 1368; 24 Cyc. 1360; Marmet Co. v. Archibald, 37 W. Va. 778; Munigle v. City of Boston, 85 Mass. (3 Allen) 230; Estelle v. Dinsbeer, 30 N. Y. Supp. 243. (c) But even if the'lease was voidable, respondent did not waive its termination. (3) Even in the absence of an express agreement, a month-to-month tenancy would be conclusively implied from the conduct of the receiver in holding over after respondents’ notice that he might remain only as a month-to-month. tenant. Continued .occupancy under such conditions is always held to be an acceptance of the terms imposed, the tenant’s assent being inferred. Hunt v. Bailey, 39 Mo. 257; Ins. & Law Bldg. Co. v. National Bank of Mo., 71 Mo. 58; 1 Taylor oh Landlord &■ Tenant, par. 22; 16 R. C. L. par. 683; 2 Tiffany, p. I486; Gardner v. Dak. Comrs., 31 .Minn. 33; Shipman v. National, 64 Tex. 174.
   PARIS, J.

This is an action under our forcible-^ entry and unlawful-detainer statutes for the possession' of certain premises situate in Kansas City. Plaintiff had judgment for possession; for damages, assessed at two thousand dollars, which sum was doubled by the cou/rt; for future rents and profits, assessed at $650 per month, pending appeal and till possession be delivered to plaintiff, which sum was likewise doubled. Whereupon, defendants Kelly, LeMarquand and LeDoux appealed in the conventional way.

The action orginated before a justice of the peace and was begun by filing a complaint which, formal parts and signature of counsel omitted, reads thus:

“Gary Realty Company, a corporation, duly organized^ and existing according- to law, plaintiff, complains of E. P. Kelly, Paul LeMarquand, A. LeMarquand, O. LeDoux, P. G. Bonfils,-Harry H. Tammen and Empress Theatre Company, a corporation, defendants, and says that on the 29th day of October, A. D. 1915, and long-before that time he was in the lawful and peaceable possession of the certain premises situated in Kansas City, Jackson County, Missouri, described as the certain (formerly store) room at the northwest corner of* Twelfth and McGee Streets in said city, having a frontage of twenty feet and ten inches on. said Twelfth Street and extending back northward the full depth of Lot 134, Swope’s Addition in said city, and still further north beyond the north line of said lot, approximately 16 feet, said room having been used as a part of the lobby of the Empress Theatre in the City of Kansas City, Kaw Township, of the County of Jackson, State of Missouri, and has ever since been and 'still is entitled to the possession thereof; that on the said 29th day of October,. 1915, the defendants wilfully and unlawfully hold over and detain possession of said premises or wrongfully and without force, by disseizin, obtained possession of said premises, and have ever since held and still hold possession- thereof “wrongfully and unlawfully; and although the plaintiff did, on the 30th day of October, 1915, demand in writing the possession of said premises of the defendants, they, the said defendants refused and neglected to quit the possession-thereof, to the plaintiff’s damage in the sum 'of two thousand dollars, Wherefore plaintiff demands judgment for the possession of said premises and- for said damages.”

Thereafter, by certiorari under the statute defendants caused the proceedings to be removed to the Circuit Court of Jackson County. In the latter court, and at the December Term, 1915, semble, a stipulation waiving trial by jury was duly filed in the case. This stipulation, omitting formal parts and signatures of counsel, reads thus:

“Come now the parties hereto and by their attorneys hereby stipulate and agree that the trial of this cause by jury is hereby waived and that said cause may be set for trial on any day during the first' week of January, 1916, term of court, or thereafter, according to the convenience of the court.”

On the same day on which the above stipulation, was filed, defendants Kelly, LeMarquand and LeDoux filed formal answers, which consisted, in all pertinent parts, of (a) general denials, except of the fact of possession, which defendants Kelly, LeMarquand 'and LeDoux admitted; .(b) a plea of ownership and possession under a purchase by said defendants of the lease at a sale by tbe receiver of tbe Empress Theatré Company, pursuant to an order of the circuit court; (cj a tender, as such tenants so in possession of all rent due according to the tenor of the instrument of lease-evidencing the term so purchased, and (d) a waiver of forfeiture by plaintiff of conditions broken, arising, it is averred, from the acceptance of the rent and the recognition of the receiver as plaintiff’s tenant. Defendants Bonfils and Tammen filed general denials, which included, of course, negation of the fact of possession.

Thereafter, defendants Kelly, LeMarcjuand and LeDoux (who, since they alone have appealed, we shall hereinafter call 'defendants) filed a motion to require plaintiff to elect, for that the allegation' in plaintiff’s complaint that “the defendants wilfully and Unlawfully held over and detained possession of said premises, oy wrongfully and without force by disseizin obtained possession of said premises, and have ever since held and still hold possession thereof wrongfully and unlawfully” was “an attempt to charge the defendants with both unlawful detainer and forcible entry and detainer’^ and that “said causes of action being entirely separate and distinct can not under the law be charged in the same cause of action.” This motion to elect was overruled. Thereafter, on January 29, 1918, defendants filed a demurrer to the complaint, which demurrer, in addition to the customary allegation that the facts set forth in the complaint are not sufficient to constitute a cause of action, further averred “that several causes of action have been improperly united.” While this demurrer was overruled, plaintiff on the same day asked and was given leave to file an amended complaint within four days thereafter. Whether the demurrer, as the practice is, was overruled upon and because ’ of the request of plaintiff for leave to file an amended complaint does not affirmatively appear, since no reason is given in the record for the trial court’s action in this behalf. Afterwards, and within the four days allowed by the court, plaintiff. filed an amended complaint in two cóunts. The first count charges the holding over of' the possession of- the premises wilfully and without force after the expiration of the term; while the second count charges the obtention of possession and the withholding thereof wrongfully and without force by disseizin after demand therefor made in writing. Since the court found in favor -of plaintiff upon the first count only, no necessity1 is seen for burdening this necessarily lengthy statement with a recital of the second count. But the first count is pertinent, since about it, as a storm center, rage well-nigh the whole of the contentions made. It reads thus:

‘ ‘ Comes now the complainant, Gary Realty Company, and ' for its first cause of action against defendants, states that complainant is and was at all times hereinafter mentioned a corporation^ organized and existing under the laws of Missouri, and complains to the above entitled court that on or about the 30th day of October, 1915, and at the time of the institution of this action, complainant had the legal right to the possession of the certain premises (together with the improvements thereon) situated in Kansas City, Jackson County, Missouri, and in Kaw Township, in said city, described as the certain room at the northwest corner of Twelfth and McGee Streets in said city, having a frontage of twenty feet and ten inches on said Twelfth Street and extending back northward therefrom, the full depth of Eot 134, Swope’s Addition in said city, and still further north, beyond the north line of said lot, approximately sixteen feet, said room having formerly been used as a store room, but more recently and at the present time being used as a part of the lobby of the Empress Theatre conducted by defendants in said city; that complainant has been ever since the date aforesaid and still is entitled to the possession of said premises and improvements; and that defendants wilfully and .without force hold over the possession of said premises after the expiration of the time for which they were let to one H. C. Robertson and his assignee, Empress Theatre Company, (another and different corporation than the defendant of the same name) and also to one Cyrus Jacobs, Receiver, as a month-to-month tenant, and after demand, made in writing for the delivery of the possession thereof; and complainant says that it is ignorant whether or not defendants claim right to possession of said premises under and through said Robertson, Empress Theatre Company and Cyrus Jacobs, Receiver, but complainant believes and therefore alleges the fact to be that defendants hold possession claiming either under said Robertson, Empress Theatre Company and Cyrus Jacobs, Receiver, or some other person or corporation unknown to complainant, and in either event defendants hold over possession of said premises after the expiration of .the time for which same were let to anyone whomsoever.
“Complainant further states that it has sustained damages by reason of the unlawful detainer aforesaid in the sum of five thousand dollars, and that the value of the monthly rents and profits of said tenements is eight hundred dollars.
“Wherefore, the complainant prays judgment of restitution and for his damages and the value of the monthly rents and profits of the premises aforesaid.”

To the above complaint defendants filed an amended answer — in fact two amended answers — in which, in addition to the pleas heretofore set forth, they raised the issue of estoppel, bottomed on the allegation that plaintiff had filed, in the proceeding for a receiver brought by defendants Bonfils and Tammen against the Empress Theatre Company, an intervening petition for damages accruing on account of past due rent.

• The facts of the case, apart from the very complicated nature of the pleadings, are, briefly: That plaintiff leased the premises in dispute to one Robertson, who sub-let them to the Empress Theatre Company for a term of five years (with an option of five years more upon certain conditions) from the first day of October, 1914, at a rental of $500 per month for two years, $550 per month for three years, and at such rent as might be afterwards agreed upon by a re-valuation, for the subsequent five-year option term. The instrument of lease contained but one clause which is necessary to an understanding of the facts and the law in issue. This was Clause 13, and it reads thus: “In case lessee becomes insolvent or goes into bankruptcy, voluntarily or involuntarily, or into receiver’s hands, then this lease shall become void and the remaining portion of the tei’m shall revert to lessor. ’ ’

After this lease had run for some nine months, and while the premises in dispute were in the possession of the Empress Theatre Company as sub-lessee, a proceeding was brought in the circuit court of Jackson County by defendants Bonfils and Tammen as plaintiffs therein, against the Empress Theatre Company, whereby pursuant to the object and prayer of the latter proceeding one Cyrus Jacobs, theretofore the manager of the Empress Theatre Company, was on the second day of July, 1915, appointed receiver of the lessee and as such took into his possession all of the property of the lessee, including the premises in dispute. Eight days after Jacobs was appointed receiver and four days after he qualified as such, and on July 10, 1915, plaintiff gave notice to the Empress Theatre Company and to Cyrus Jacobs as received thereof, of its election to declare a forfeiture of the lease for conditions broken. This notice, omitting address and signatures, reads thus:

“We are writing to call your attention to the fact that the certain lease held by you Empress Theatre Company as Lessee upon the premises' at the northeast corner of the building situated at the northwest corner of Twelfth and McG-ee .Streets, in Kansas City, Mis-' souri, being a room on the corner with about twenty feet and ten inches of frontage on Twelfth Street, and extending back the full depth of Lot 134, Swope’s Addetion; thence extending approximately 16 feet north of the north line of said Lot 134, said premises now being used by you as a theatre lobby, and' said lease having been made by us as Lessor, dated December 17, 1909, and being for a term beginning October 1, 1914, has been terminated by the appointment of Cyrus Jacobs as Receiver of Empress Theater Company, by the Honorable Clarence A. Burney, a Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, on Wednesday, July 7, 1915, and the taking charge and possession of said Theater by said Receiver, and also by the insolvency of said Empress Theatér Company.
“The provision of the lease which is applicable is the thirteenth, reading as follows:
“ ‘In case Lessee becomes insolvent or goes into bankruptcy, voluntarily dr involuntarily, or into receiver’s hands, then this lease shall become void and the remaining portion of the term shall revert to Lessor.’
“In view of the termination of said lease, as aforesaid, we are willing that Cyrus Jacobs, as Receiver, continue for the time being in possession of the premises above described as a month-to-month tenant for the rental of $550 per month, payable in advance on the first day of each month.
“We shall give due notice to the said Receiver when we desire possession of the property.”

Two days af+er this notice was served on the receiver, the latter called on John S. Wright, of counsel herein for plaintiff, who had in charge for plaintiff all of the legal matters involved, and offered him a check for $500 in payment of the rent on the disputed premises for the month of July, 1915. Thereupon Mr. Wright and . Receiver Jacobs discusses the matter of the alleged forfeiture and Jacobs agreed to retain possession of the premises thereafter as a tenant by the tnonth. Touching this conversation Wright’s testimony runs thus:

“On July the 12th, 1915, Mr. Jacobs came to our office and offered to pay me, as representing the Gary Realty Estate, $500 rent for the premises in controversy here. The payment was offered in the form of a check for $500 signed by Cyrus Jacobs, Receiver. I told Mr. Jacobs that we had been instructed, as attorneys for the Gary Realty Company, either to require immedi ate surrender and possession of these premises, or to require that Mr. Jacobs rent them as receiver on a month-to-month basis; as a month-tó-month tenant; that they would be permitted to stay there as a month-to-month tenant. Mr. Jacobs replied that it was necessary for them to stay there, that they wanted to stay there on any basis, and he agreed to that arrangement, a month-to-month tenancy. ... I then took his check, the check I have mentioned, and gave him this receipt, Exhibit 12, explaining to him that we were separating the rent included in the check into two items, for the purpose of making the distinction clear between the tenancy of the Empress Theater Company, which we considered had been terminated by the appointment of him as receiver, and the month-to-month tenancy which was then beginning on his part as receiver.
“Q. You say that was explained to Mr. Jacobs at that time? A. Yes, sir.
“Q. And is that the reason here you made two receipts on the same sheet of paper? A. Yes, sir, and I made mathematical division in his presence.
“,Q. Now, Mr. Wright, there was something said here about the changing of some figures in a notice from $550 to $500. I call your attention to Exhibit 4, the second line from the bottom, the figures $500, indicating upon its face that it was changed from $550 to $500. Did you have any conversation with Mr. Jacobs about that? A. I did. When Mr. Jacobs came in that clay, lie remarked, I think it was the first remark that he made when we 'began onr conversation, that the notice which had been served on him, and on the theatre stated that we were willing to permit them to remain as a month-to-month tenant on a rental of $500 a month. He said that he had talked with ^Mr. Schoenberg, and that Mr. Schoenberg had said to him that the Gary Realty Company was willing that they should occupy the premises as a month-to-month tenant at the same rental, of $550 a month, which the theatre had been-paying, and I told him that I had since been informed by Mr. Schoenberg that that was a fact; that it had been, my impression that the premises had been renting for $550 a month, and I explained to him that I had gotten that impression'by hastily looking at the lease, and not making' a careful examination of it, and at his request I made the correction.
“Q. Then and there? A. I changed that myself to $500 a month.~-
“Q. And did he ask you to make the change? A. I don’t recall whether he asked me, he called my attention to it, as I have stated, and I then made the change.
“Q. There is a period in the lease where the rental is $550 a month? A. There is, and I thought that was the rental at that time. The instruction that Mr. Schoenberg had given me was before Mr. Jacobs came to make the rental at $500 a month, and that was purely an inadvertent insertion.”

Following this agreement the receiver paid by chick the rent for July, 1915, and received two receipts therefor; one of these receipts was for the sum accruing as rent up to the time of the appointment and qualification of Jacobs as receiver; the other was for the remainder of the month of July, after 'the appointment of the receiver, and represented rent due on the agreement of the receiver to thereafter hold the premises as a tenant by the month. On July 20, 1915, thereafter, notice was given by plaintiff to Jacobs as receiver of the Empress Theatre Company to vacate the "premises in dispute on or before the 31st day of August, 1915. Possession was not given, however, but on September 1, 1915, a cheek for the 'September rent was tendered to plaintiff and by it refused. Other checks for rent due (or at least one other check) for subsequent months were also tendered and refused, but such refused checks under the issues now vexing us have no pertinency.

Thereafter, under due and proper orders of the circuit court in the receivership proceeding brought by defendants Bonfils and Tammen against the Empress Theatre Company, Jacobs as receiver of the latter company sold the lease in dispute, together with the other property of the Empress Theatre Company, and this lease was purchased by defendants Kelly, LeMarquand and LeDoux, who thereupon entered into possession of the disputed premises, being inducted into possession by the receiver. After notice given to defendants herein and to the Empress Theatre Company, this proceeding in unlawful detainer was begun. Upon a trial thereof before the court, a jury having been waived —as plaintiff avers and defendants deny — judgment was given for possession, damages and rents as heretofore set out.

Other facts may be found necessary to a clear understanding of a fairly simple proceeding, which has become complicated and involved by the variety and contrariety of pleas, motions, objections and exceptions made before, during and after the trial nisi. These further facts we will if necessary set out in juxtaposition to the points we are compelled to discuss.

I. The first point made by defendants is that under the facts existing they were entitled to a trial by jury. Against this contention plaintiff sets up the stipulation waiver set forth in our statement. Defendants, to escape the force of their solemn waiver of a jury trial, aver that after this stipulation was signed by them and filed in the case plaintiff filed an amended complaint, which complaint, defendants aver, changed the canse of action. And so, defendants say, perforce snch change, they were no longer bound to abide'by their waiver. The point was saved by many objections and in divers sufficient ways; one of which was by 'way of answer invoking the Constitution of Missouri. Hence, in passing we may say, comes our right to entertain this appeal.

We are clearly of the opinion that the defendants’ contention upon the state of the abstract law is correct. The point is res integra in this State, and while there are a few cases in other jurisdictions holding to a different rule, the great weight of authority, and the reason of the thing supports this authority, is, that the making of any material change in the pleadings by amendment, so that the issues are altered, off-sets the binding force of a waiver of a jury by stipulation. [Reese v. Baum, 82 N. Y. Supp. 157; Hewitt v. Week, 51 Wis; 368; McGeagh v. Nordberg, 53 Minn. 235; Gage v. Commerce Nat. Bank, 86 Ill. 371; Hanchett v. Ives, 171 Ill. 122.] It is obvious that a litigant might be perfectly willing to waive a jury as to a cause of action involving a small sum, or certain issues, and be wholly unwilling to waive a jury trial upon a petition for a larger sum, or upon new and wholly different issues. Such litigant might waive a jury in a trial upon a petition which stated no cause of action and be unwilling to waive a jury trial upon a good petition. Indeed, it may well be said that there is a sort of tacit agreement between the parties that a stipulation to waive the right of trial by a jury is a stipulation to waive' that right only as to the case and upon the issues as they stand at the time the stipulation is made and filed. So, if the issues herein were materially changed without the fault of defendants after the stipulation was signed, then it was error to refuse the defendants’ request for a jury non obstante stipulations.

In determining this controlling question we need look only to the first count, since that is the count on which the finding and judgment of the court nisi rest. In looking at the separation of the complaint into two counts we must bear in mind that such separation was probably induced by the demurrer of defendants. Two causes of action under the statutes pertaining to forcible entry and detainer were originally joined in a single complaint. Defendants by a futile motion to compel an election and by a seemingly successful demurrer, forced plaintiff to file an amended complaint in two counts. Whether a demurrer as such has any place in this sort of action we need not rule. [See Anderson v. McClure, 57 Mo. App. 93.] The first count, and as stated the one on which the judgment here is bottomed, alleged the holding over of the possession of the premises wilfully and without force after the expiration of the term, and prayed judgment for $5000 damages and alleged the value of the monthly rents and profits as $800. The original 'complaint on file when the waiver of a jury was entered into alleged both an unlawful holding over of the possession without force, and an obtaining, of the possession by disseizin. The original complaint also prayed damages, but in the sum of $2000 only. Since the separation into two counts was properly had and since it was apparently induced by the motion to elect or by the demurrer of defendants, no right to a jury can be bottomed upon such separation, and since plaintiff, after its proof was in and before the defendants offered any defense, amended its amended complaint by striking out the figures $5000 and again fixing the damages at the sum of $2000 as in the original complaint, it is-obvious that no material change was made in either of the above behalves.

But, as defendants strenuously contend, no amount was fixed or alleged in the original complaint as the value of the monthly-rents and profits. The amended complaint fixed these at the sum of $800, and the court, on sufficient testimony warranting that action, found such value to be $650 per month. [Leahy v. Lubman, 67 Mo. App. l. c. 197.] Did the allegation in the amended complaint of the value of the monthly rents and profits have the effect to change the issues and did it constitute a material alteration of the original complaint in unlawful detainer, wherein, before amendment, no such specific allegation was contained?

We have reached the conclusion, after a painstaking-examination of the peculiar statute on which this action is bottomed and of the ruled cases, that it did not. The statutes providing for the practice and proceedings in forcible entry and detainer constitute a special and preclusive code. [Purcell v. Merrick, 172 Mo. App. 412.] Such a proceeding is not to be measured or determined by the ordinary rules and proceedings in civil cases. [Brennan v. McMenamy, 78 Mo. App. l. c. 128; Elliott v. Abell, 39 Mo. App. 349.] Both the complaint provided for by statute (Sec. 7669, R. S. 1909; Sec. 6, p. 788, R. S. 1855) and the verdict prescribed by statute are sui generis, [Secs. 7669, 7670 and 7671, R.. S. 1909; Secs. 18 and 19, pp. 790-791, R. S. 1855.]

Touching this complaint and construing the statute which has never since been amended, and which prescribes the necessary allegations of a complaint, this court said in the case of Moore v. Dixon, 50 Mo. 1. c. 425, this:

“The only point now made in this court to reverse the judgment is that the plaintiff could recover no greater amount of damages than he claimed in his complaint. Under the sixth section of the act regulating forcible entry and detainer, it was not necessary in the complaint to allege a specific claim for damages; and in a complaint founded upon that section, at the trial the. jury would be justified in giving damages, and also in stating the monthly rents and profits.”

It is apparent ■ from reading the case of Moore v. Dixon, supra, that this court reached the conclusion there announced through its construction of Section 6, page 643, and Section 17, page 645, of Wagner’s Statutes. The above sections have, as forecast above, never been amended, but read to-day (except for the immaterial change of a conjunctive to a disjunctive) just as they have read for more than sixty years. [Cf. Secs. 7660 and 7669, R. S. 1909.] Neither the forms in common use (Kelley’s Justice Treatise, see. 551), the statute (Sec. 7660, R. S. 1909), nor the adjudged cases, require any specific allegation as to the value of the monthly rents and profits, or any prayer for the finding of the same. [Sec. 7669, R. S. 1909; Ish v. Chilton, 26 Mo. 256; Moore v. Dixon, 50 Mo. 424; Peedler v. Schroeder, 59 Mo. 364; Hixon v. Selders, 46 Mo. App. 275; School District v. Holmes, 53 Mo. App. 487; Brennan v. McMenamy, 78 Mo. App. 122.] Therefore, it would, seem to follow that an amendment which merely asked specifically for a finding which the statutes required to be made without the asking, cannot constitute a material change in the cause of action. Of course, as has been held by the application of the analagdus rule in other civil cases, if there is such a specific allegation in the complaint, recovery is limited to the amount thereof". [Balch v. Myers, 65 Mo. App. 422; Haumueller v. Ackermann, 130 Mo. App. 387; Peedler v. Schroeder, supra.] If the sum alleged be found by the court or jury it may by the terms of the statute be doubled (Sec. 7674, R. S. 1909), although no prayer for such doubling is made in the complaint. [Peedler v. Schroeder, supra; Bierkenkamp v. Bierkenkamp, 88 Mo. App. 445; Hadley v. Bernero, 97 Mo. App. 314.]

Both the statute (Sec. 7669, R; S. 1909) and the reason of the thing, as applied to the concrete facts before us, point to the correctness of the view here taken. The original complaint herein contained a prayer for damages in the sum of $2000. When this action was commenced, the damages did not amount to the sum alleged in this complaint, and therein prayed for. Had the action been tried in the justice’s court speedily, instead of being removed thence to the circuit court by certiorari, the amount of damages set out in the complaint would have fully covered all damages accruing or recoverable under the testimony. If thereafter, and promptly upon an adverse result, defendants, pursuant to the mandate of the judgment, had yielded possession, no necessity would have, existed for the finding of the value of future rents and profits. Therefore, no possible necessity would have existed for any allegation in the complaint, of any amount as the value thereof. In other words, the view that the complaint in unlawful detainer, in order to be, sufficient and in order to warrant a finding of the value of future rents and profits, must allege such value and pray for a finding thereof by the triers of fact, is logically bottomed on the assumed duty of a plaintiff to presume that the defendant will not yield possession promptly upon the rendition of judgment against him. It is clear that no such duty rests upon a plaintiff in such a case. The damages should properly cover accrued rents and profits up to the time of the verdict. If defendants, being cast, should immediately comply with the judgment of the court by yielding possession, the finding of the value of future rents and. profits would be an unnecessary and useless thing. Since therefore upon authority and the reason of the thing, an allegation of the value of the future rents and profits is not necessary in a complaint for unlawful detainer, we conclude that the addition of such an allegation to the first count of plaintiff’s amended complaint did not have the effect materially to change its cause of action. That the pleading was more definite and artificial with such allegation than without it, may be conceded. But we approach the question here solely from the point of view whether the addition of such an allegation constituted a material alteration.of the complaint. Holding that it did not, the contention of defendants, being bottomed wholly upon the assumption that the change made was a material one, must be disallowed.

II. Complaint is made by defendants that the learned trial court pre-judged this case in the midst of the trial by saying in effect that the conceded appointment of a receiver constituted a breach of condition for which the lessor, absent facts constituting a waiver, might terminate the tenancy and re-enter. We do not think this point is well-taken. What the learned trial judge said amounted only to his construction of the meaning of that clause of the lease which we have quoted and which provided for the reentry of the lessor in the event of the appointment of a receiver for the lessee. The construction of the language of the clause in question was for the judge in his judicial character, although he sat here also as the trier of the facts. If we may so express the thought, it was the privilege and the duty of the trial judge to rule this question on the juclge-side and not on the jury-side of the court. Being privileged to rule it in his judicial character, it was a pure question of law which required no evidence for its elucidation. Indeed, the defense urged by defendants, upon this phase of the case, was a waiver by plaintiff of the condition broken arising upon the facts in the case. Such a defense cannot be available till a breach of condition occurs. If there was no breach, there was nothing for plaintiff to waive. While construing the language of the lease contract to mean that upon the appointment of a receiver the lease terminated and the remainder of the term reverted to the lessor, the learned judge specifically stated that he was making no ruling upon the waiver pleaded by the defendants, but that he would thereafter resolve that question upon the facts adduced in testimony. We are of the opinion that he took the correct view of the meaning of the disputed clause, and that the contention that his action in the premises constituted a prejudging of the case ought to be disallowed.

In this view the question whether the facts shown in evidence amounted to a waiver of the condition broken became one to be resolved by the court sitting as a jury. This was a disputed issue, for upon this point there was evidence pro and con. Since there was substantial evidence to support the finding of the court, we are powerless to interfere, even if we were disposed to do so. [In re Lankford, 272 Mo. l.]

III. But it is strenuously contended that no month-to-month tenancy was possible of creation, because no agreement with tbe receiver for tbe creation of sucb a tenancy could be valid or binding. This upon tbe view tbat as sucb a receiver is a mere arm of thé court which appoints hint, be can make no valid or binding contract affecting tbe property in bis bands without tbe consent of sucb court. We do not think there can be any serious doubt about the legal correctness of tbis view. But whatever waiver there is in tbis case is bottomed wholly upon tbe dealings of plaintiff with tbe receiver. The facts shown by the testimony and tbe documents in evidence prove conclusively, so far as we, as an appellate court, are concerned, tbat plaintiff never acquiesced in the receiver’s possession as a-tenant under the lease after tbe receiver was appointed. Pour days after tbe appointment and qualification of Jacobs as receiver, plaintiff served notice on him as manager of the Empress Theatre- Company, and also as receiver of tbe latter company, advising him tbat tbe lease was at an end by reason of a forfeiture arising .from the appointment of a receiver for tbe lessee. At tbis time Jacobs, as receiver, was in possession of tbe disputed premises. Two days’ after tbis notice was served on him, Jacobs called on tbe attorney for plaintiff, paid tbe rent on tbe disputed premises for six days and up to tbe time of bis qualification as receiver, and -made an agreement (which we may now concede to have been out of bis power to make, absent confirmation by tbe court) to remain in possession as a tenant by tbe month. Thereupon, be paid and plaintiff accepted rent as a tenant by tbe month for tbe remainder of tbe month of July. On tbe 20th-day of tbe same month notice was given to Jacobs as receiver, who was still in possession as sucb, terminating tbe montb-to-montb tenancy and demanding possession of tbe premises on September 1, 3915. Tbe rent for August was paid and accepted without anything further having been done, written or said on either side. After August 31, 1915, no more rent was accepted by plaintiff, though tenders thereof were made for.both the months of September and October.

Can waiver be present as a matter of law where the facts show full reliance by the parties at all times upon a situation which negatives and contradicts any intention to waive! We think not. The general rule announced by a most excellent work after a careful consideration of the great majority of the ruled cases, is this:

“The question of waiver is mainly a question of intention, which lies at the foundation of the doctrine. Waiver must be manifested in some unequivocal manner, and to operate as such it must in all cases be intentional. There can be no waiver unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby. Since intent is. an operation of the mind it should be proven and found as a fact, and is rarely to be inferred as a matter of law. An intention to make the waiver claimed should clearly be made to appear by the evidence; and the best .evidence of intention is to be found in the language used by the parties. The true inquiry is what was said'or written, and whether what'was said indicated the alleged intention. The secret understanding or intent of the parties is immaterial on the question of waiver. The intention need not necessarily be proved by express declarations, but may be shown by the acts and conduct of the parties, from which an intention to waive may be reasonably inferred, or even by non-action on their part. Mere silence at a time when there is no occasion to speak is not a waiver, nor evidence from which waiver may be • inferred, especially where such. silence is unaccompanied by any act calculated to mislead.” [40 Cyc. 261.]

It is clear that the facts in this case, as the learned trial court was permitted under the rule to find them (In Re Lankford’s Estate, supra), bring it within the rule above announced. Tbe view that a waiver of a forfeiture of a lease will not be inferred after condition broken where neither party relied upon the continuance of the lease, and where all of the facts upon which the parties acted were fully known to the adverse party, has in effect been taken in a well considered case by the St. Louis Court of Appeals. [Baxter v. Heimann, 134 Mo. App. 260.] The'case of. Barnhart v. Finney, 40 Mo. 449, is relied upon by defendants as furnishing authority for the position which they assume. We find no fault whatever with the rule announced in the Barnhart case= Upon the facts held in judgment in that' case no other view than that taken was legally possible. But a bare reading of the latter .case discloses how far the facts therein differ from the facts now before us. In the Barnhart case rent was accepted by the lessor for more than four years after conditions were broken, without insisting upon a forfeiture, and without any suggestion of forfeiture, except a faint assertion thereof subsequently withdrawn. After the abandonment of the vague suggestion of forfeiture, the lessee in the Barnhart case constructed upon the leased premises valuable improvements, and the lessor continued to accept payment of rents until the first full term expired, and for a period as stated, of four years, without any objection, till the lessee elected to hold over under his option for another term. Here, immediately after the .occurrence of the fact constituting a breach of condition, notice of plaintiff’s election to declare a forfeiture therefor was given. And plaintiff has throughout and up to now continuously insisted on this forfeiture. Thereafter, an agreement for a continuance in possession of the receiver of the lessee was made with the latter. But such continuation in possession was not to be under the terms of the lease now alleged to be forfeited, but was pursuant to a new arrangement entirely. No acquiescence in the breach ever at any time occurred on plaintiff’s part. Nor is there in the record any acquiescence in the receiver’s alleged possession under the lease. The lease was throughout by plaintiff declared and deemed to be forfeited, abrogated and at an encl, and this condition of forfeiture was agreed to and acquiesced in by the lessee’s receiver, who fully understood all the facts and the entire situation and who thereafter was treated as and paid rent till given'notice to quit, as a tenant by the month. No one ought to be deemed to waive a right when every act he does and every word he utters constitutes a denial of a waiver 'thereof, and a denial of any intention to waive it. Especially when this attitude is fully disclosed to, and known at all times by the adverse party. We conclude that there was no waiver of the forfeiture disclosed by the-facts in this case.

Other errors are assigned, and set forth in defendant’s printed assignment of errors, but we find no sufficient merit in any of them to warrant a reversal, and we are precluded from a review of them by the rules that error will not be presumed; that the mere assertion of error is not sufficient to convict the trial court thereof; that to the acts of the trial court, naught else appearing, the presumption of correctness attaches, and that upon him who alleges error is thrust the burden of proving it. Finding no error warranting reversal, it follows that the case ought to be affirmed. Let this be done.

All concur.


author: WILLIAMS, P. J.

text:
    THE STATE v. ROSS FINLEY, Appellant.
    Division Two,
    June 3, 1919.
    1. INSTRUCTION: Argumentative: Unwarranted Comment. An instruction set out in the statement is held to be argumentative and an unwarranted comment on the evidence, and therefore properly refused.

      2. -: Covered by Others. It is not error to refuse an instruction on the subject of reasonable doubt asked by defendant, where the subject has already been fully covered in other instructions , given.
    3. -: Reasonable Douh't: Each Juror: Unnecessary Reflection. An instruction telling the jury that “before you can return a ver- . diet of guilty you, each and all, must believe beyond a reasonable doubt that the evidence proves the guilt of defendant” and “if any one of your number believes that the defendant is not guilty, then it is your duty to stand by your own conviction and not be overpersuaded by the opinion of other members of the jury,” contains no information not already known by the jury, and is an unnecessary reflection .upon them, apd its refusal is not error.
    4. SUFFICIENCY OF EVIDENCE: Attitude of Court. The appellate court is not permitted to review the case from the attitude of a juror, or from the viewpoint of one exercising the pardoning ' power; and while the evidence on a vital issue in the case may be conflicting and such as to give room for doubt, yet if as a matter of law it was sufficient, on that and other material issues, to support a verdict, the judgment cannot be disturbed on the ground of insufficient evidence to support a conviction.
    Appeal from Scotland Circuit Court. — Hon. N. M. Pettingill, Judge.
    Affirmed.

      John A. Whiteside and • Claude C. Fogle for appellant.
    (1) In this character of a case where the prejudice of the average man will make it hard for him to give the defendant the benefit of the doubt it is important that defendant be allowed as strong instructions on this point as is contemplated by the law. It is evident, in this case, that the jury did not give the defendant the benefit of ‘the doubt. (2) The testimony of the prosecutrix is uncorroborated. The defendant denies the carnal knowledge and he is shown to have a good reputation for both virtue and chastity and truth and veracity. We are aware that this court has held that the testimony of the prosecutrix, in this character of a case, need not he corroborated to sustain a conviction. State v. Marcks, 140 Mo. 6>56; State v. Day, 188 Mo. 359. In one of these cases the court speaks of the fact that in such cases no one but the prosecutrix and the defendant know as to the truth of the- charges; which, as a rule, is true. But in every such case, there are, as a rule, circumstances which will corroborate either one or the other, and in both of the cases above cited the prosecutrix is corroborated by the circumstances, in the case, and the court so holds. In this case every ° circumstance corroborates the defendant and contra-. diets the prosecutrix. (3) The previous chaste character of the prosecutrix should be proven, beyond a reasonable doubt, the same as any other fact in the case. In this case, the preponderance of the evidence is against the prosecutrix on this point.

      Frank W. McAllister Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent-.
    (1) The evidence was sufficient to sustain the verdict rendered.". State v. Marcks, 140 Mo. 656; State v. Matthews, 202 Mo. 148; State v. Reed, 237 Mo. 231; State v. Salts, 263 Mo.'304; (2) Defendant’s instruction 3, being sufficiently covered by instruction 3 given by the court, was- properly refused. State v. Hicks, 178 Mo. 433. (3) The court did not err in refusing- to give defendant’s cautionary instruction numbered 5. State v. Chump, 16 Mo. 395; State v. Thurman, 121 Mo. App. 376. (4) The instructions given on behalf of the State and on behalf of the defendant properly declared the law and covered all the issues involved in this case. State v. Perrigin, 258 Mo. 233; State v. Salts, 263 Mo. 304; State v. Day, 188 Mo. 359. '
   WILLIAMS, P. J.

Upon an information charging him with the crime of having carnal knowledge of an unmarried female of previous chaste character between the ages of fifteen and eighteen, defendant was tried in the Circuit Court of Scotland County, found guilty and sentenced to two years imprisonment in the Penitentiary. Defendant has duly perfected an appeal.

The evidence upon the part of the State may be summarized as follows:

The crime is alleged to have occurred on or about August 15, 1915. At that time'the prosecutrix, seventeen years and five months of age, resided with her parents on a farm about five miles east of Memphis, Missouri, and the defendant, then seventeen years and nine months of age, resided with his parents on a farm in the same neighborhood. Defendant began calling upon prosecutrix in July, 1914, continuing so to do until about December of that year, at which time he temporarily ceased his attentions. He again began calling upon prosecutrix in April, 1915, and from that time until May 17, 1916, continued to call upon her at least once a week. .

One moonlight night about the middle of August, 1915, defendant and prosecutrix in a single buggy were returning to their homes from Memphis, where they had gone to attend the Chautauqua. While they were on the road and in the buggy, defendant had sexual intercourse with the prosecutrix. Little or no'resistance was made on the part of the prosecutrix. She testified that this was the first time that she had ever indulged in an act of sexual intercourse, but that after- this time she and defendant frequently so indulged until about May 7, 1916, at which time defendant ceased calling upon her. The prosecutrix gave birth to a child January 15, 1917. Several witnesses ■ testified that the reputation of the prosecutrix for chastity prior to the time this difficulty arose was good.

It further appears from the evidence that in October, 1916, the father of the prosecutrix, together with the prosecutrix, went to the home of defendant to see what defendant would do by way of righting the alleged wrong. When they arrived at defendant’s home, prosecutrix remained at the defendant’s house, while prosecutrix’s father went out to the field where defendant was at work. Defendant’s father was nearby and joined in the discussion. The father of prosecutrix accused defendant of having caused the pregnancy of his daughter. Defendant denied being guilty. The three walked up to defendant’s home; there the defendant .persuaded the father of prosecutrix to forego further discussion of the matter on that day, promising to go to the home of prosecutrix on the following day and discuss the situation. The father of prosecutrix, before leaving defendant, said to him, “If you don’t settle this by Saturday I will have to see that it is settled.”

On the next day defendant failed to keep his promise and left the State, and his whereabouts was unknown for several months. Some time in the Spring of 1917, it was learned that the defendant was in Idaho. Upon the request of the sheriff of Scotland County, Missouri, the defendant was arrested, and the sheriff of Scotland County went to Caldwell, Idaho, and brought the defendant back for trial.

The evidence upon the part of defendant may be summarized as follows:

The defendant testifying in his own behalf admitted that he had called upon prosecutrix frequently at the times mentioned, but denied that he had ever had sexual intercourse with her.

The sister of the defendant testified to conversations she had had with the prosecutrix, from which it might be inferred that prosecutrix had had sexual intercourse with a neighborhood boy, prior to the time of the alleged crime. It also appears in the evidence that this , neighborhood boy was in Iowa at the time of the trial.

The defendant in explaining his flight stated that when the father of the prosecutrix came to his home and accused him of being guilty in the matter and the defendant replied that he was not guilty, the father of prosecutrix told the defendant that if it were not settled by Saturday night, the defendant’s blood would settle it. The defendant further testified that he was not ready to die and upon the advice of his father he left in order that he might keep out of the way of the father of prosecutrix. That when he was later arrested in Idaho, he offered to return without requisition papers.

The testimony of defendant as to the cause of his flight is corroborated by the testimony of his father and mother.

The defendant offered evidence tending to show that his reputation for virtue and chastity in that community was good.

The court refused to give defendant’s instructions numbered three and five, which are as follows:

“3. The court instructs the jury that the said Edna Boozel complains of the act of the defendant committed in a buggy on the way from the Chautauqua to her home and described the acts of the commission of said intercourse. Now if the jury believe that her description of said acts is contrary to the known physical ' facts existing and pertaining to said acts, or- to the accomplishment thereof, then you are instructed that you may disregard her entire testimony on said complaint and find the defendant not guilty.
“5: The court instructs the jury that before you can return a verdict of guilty you each and all must believe beyond a reasonable doubt that the evidence proves the guilt of the defendant. Now if anyone of your number, or more of your number, believes that the defendant is not guilty, then it is your duty to stand by your own conviction or belief and not to be overpersuaded or overcome by tbe opinion or conviction of the other members of the jury.”

I. Tbe only points discussed by appellant in bis brief as a ground for reversal is that tbe court erred in refusing to give appellant’s instructions num(3erec| ^ree anq fjVe. The instructions mentioned are set forth in tbe foregoing statement. We are unable to discover any error in the refusal of. these instructions.

Instruction three was properly refused because it was argumentative and was an unwarranted comment upon tbe evidence.

Instruction five was properly refused because: (1) Tbe question of reasonable doubt bad already been fully covered in tbe instruction given; (2) Tbe remaining portion of The instruction to tbe effect that “each juror” must believe beyond a reasonable doubt, etc., contained no information not already known by the jury. Similar instructions have by this court been described an “unnecessary reflection upon tbe jurors” and it has been held that tbe refusal of same was not error. [State v. Young, 105 Mo. 634, l. c. 640 ; State v. Garth, 164 Mo. 553, l. c. 565.]

II. Pursuant to mur statutory duty in the premises we have reviewed tbe entire' record for error, but find no points, other than tbe above, which merit discussion.

We are not permitted to review tbe case from the viewpoint of a juror, nor from tbe viewpoint of one exercising tbe pardoning power. While the evidence on tbe vital issue as to tbe previous chaste character is conflicting and such as might give room for doubt, yet the evidence as a matter of. law was sufficient to support the verdict, under numerous decisions of this court. [State v. Reed, 237 Mo. 224, l. c. 230-1.] It therefore follows that the judgment should be affirmed.

It is so ordered.

All concur.