text:
    LYDIA LAWLESS, Appellant, v. CHARLES A. KERNS.
    Division Two,
    May 9, 1912.
    1. WILLS: Creation of Power. A testator gave his wife a life estate, with remainders to three children, the will continuing, after provisions fixing various amounts and times of division for the shares of these children, “and if Lydia [one of the children] should marry before the death of my said wife, then it shall be at the discretion of my said wife how much my said wife shall give her.” Lydia married before the death of the testator’s wife. Held, that the will gave the wife a power to fix and set off to Lydia the amount she should have.
    2. -: Absolute Estate: Subsequent Clause. An absolute estate created by one clause of a will cannot be cut down by a subsequent clause, unless the language used is as clear and decisive as that of the clause creating the same.
    3. -: Effect of Subsequent Clause on Estate Granted: Estate in Remainder: Estate in Possession. A’s will gave an estate for life to B, his wife, with remainders to C, D and E, his children, and provided further, (a) that if C, D,, or E should die before reaching twenty-one, the property should descend to the other two; (b) if both of the boys, C and D, should marry leaving E, the daughter, single, then E and the last boy to marry should make an equal division after, the first one had his third, leaving E the homestead; (c) if E marry after the death of the testator’s wife, and after the boys reach twenty-one, she should have $1000 in valuation of the property; and (d) if E should marry before the death of the testator’s wife, “then it shall be at the discretion of my .said wife how much my said wife will give her.” Held, that E’s estate is not cut down by the final clause. The estate which the widow is empowered to assign her in case of marriage is of a higher character than what was previously provided. The first clause gives her a remainder in fee, the clause containing the power authorizes an appointment in fee simple in possession.
    4. -: Powers: Execution. A’s will provided that if E should marry before the death of testator’s wife, who was given a life estate in the property, then it should be at the discretion of the wife how much she would give to E. E married before the widow died. Afterwards the widow, together with all others interested therein, deeded to E a part of the estate lands, hy a deed which provided that it should he a receipt for all claims of E against the estate, hut which contained no reference to the power. E has kept the deed ever since, and she took possession of the land and finally sold it. Held, that the deed was an effective execution of the power, and that it divested E of all interest in the estate.
    Appeal from Clinton Circuit Court. — Hon. A. D. Burns, Judge.
    Aeebimed.

      W. H. Haynes and W. 8. Herndon for appellant.

      L. F. Henry and Duncan & Uiz for respondent.
   ROY, C.

This is an ejectment suit for the undivided half of 180 acres of land, tried in the circuit court of Clinton county, where there was judgment for defendant, and the plaintiff has appealed.

The answer admitted possession, and denied all other allegations. The case was tried without a jury.

It was agreed that John Kerns was the common source of title. He died April 14, 1877, seized of the land in controversy and other land. He left a will which was probated, the material parts of which, after providing for his other children, are as follows:

“I further give and devise to my wife Elizabeth Kerns, all my real estate situate in the counties of Clinton, Buchanan and DeKalb, and also all my personal property of every kind and nature whatsoever during her natural life.

“At the death of my said wife Elizabeth Kerns, then the property both real and personal descends to Lydia Kerns, Charles A. Kerns and Lincoln S. Kerns, and if either of the three last mentioned children shall die before arriving at the age of twenty-one years, then in that event the property both real and personal descends to the other two.. If either of the boys marry after the death of my said wife and after they arrive at the age of twenty-one years, they shall have one-third in valuation of both real and personal property, and if the other boy marry after he is twenty-one years of age and leave Lydia single then he and Lydia make an equal division in valuation leaving Lydia the homestead. If Lydia should marry after the death of my said wife and the boys, that is Chas. A. Kerns and Lincoln S. Kerns, become twenty-one years of age then Lydia is to have one thousand dollars in valuation of real and personal property, and if Lydia should marry before the death of my said wife, then it shall be at the discretion of my said wife how much my said wife will give her, but after the death of .my said wife and the boys become twenty-one years of age then Lydia shall have four hundred dollars in real or personal property at cash valuation by disinterested parties.”

The widow died January 15', 1908. The plaintiff married in 1883. Charles and Lincoln Kerns were both living at home with the mother at the time of plaintiff’s marriage. For a year after her marriage, plaintiff and her husband lived at the home of the mother, as did also Charles and Lincoln. About that time the mother gave the plaintiff two cows, and a bed and bedstead. The mother and the two boys who were at home borrowed about five or six hundred dollars on a note and bought twenty acres of land and had it deeded to the plaintiff, and the note was paid out of estate money. The mother and Charles and Lincoln on February 17, 1890, conveyed to the plaintiff twenty-six acres of the estate land by warranty deed for the expressed consideration of $500, and the deed contained the following clause:. “This deed to be a receipt in full of all claims of said Lydia Lawless against the estate of James Kerns, deceased.” The deed was at once filed for record, and soon after was sent by mail to the plaintiff, and she has had it ever since. She testified at the trial that she knew nothing ahont the making of the deed until she received it by mail after it was recorded. The defendant testified that she, prior to the making of the deed, demanded her part of the estate, and that the deed was made in pursuance of that demand with the understanding between the parties thereto that it should be accepted by her as her share of the estate.

Plaintiff at no time prior to her mother’s death objected to said clause in the deed.

Plaintiff took possession of the land conveyed to her and finally sold it.

The defendant testified that Lincoln Kerns was not of age when the plaintiff married; and that plaintiff five or six years after she got the first land complained that she did not have her part of the estate, and the mother proposed to give her the land adjoining her, and that they all, including the plaintiff, went to the officer, when the deed was made and acknowledged, and that the officer asked the plaintiff if she accepted it as her interest in her father’s estate and she said that she did.

At the time of the plaintiff’s marriage, all her sisters were married.

The only question necessary to be decided here is whether a power was given to Elizabeth Kerns to determine* what part of the estate the plaintiff should have and whether there was a valid execution of that power.

We do not think the language of the will can be given any other meaning than that it was the intention, in case paintiff married before her mother’s death, the mother should have the power to segregate and set off to her the part of the estate which the mother desired her to have.

It is true that an absolute estate created by one clause of a will cannot be cut down or limited by a subsequent clause, unless tbe language used is as clear and decisive as that of the clause creating the same.

It -will be noticed that no estate is cut down by the subsequent clause. The estate which the widow is empowered to assign plaintiff in case of her marriage is of a higher character than what was previously provided. The first clause gives her a remainder in fee, the clause containing the power authorizes the appointment to the plaintiff in fee simple in possession. The first clause provides that the remainder shall go to the three children, but that provision is immediately followed by other provisions as to how much of the property the plaintiff under different contingencies may take.

We have no doubt of the testator’s meaning on this point. He certainly meant that if the plaintiff should marry before her mother’s death, the mother should have the power to set off to her the part of the estate which the mother, in her discretion, should think was plaintiff’s proper share.

The deed made to the plaintiff by the mother and her two sons was an effective execution of that power. It does not expressly refer to the power; but that is not necessary. It must be admitted also that it is not necessary, in order to make it effective for the conveyance of the land therein described, that it be referred to the power. Everybody having any interest in the land thereby conveyed was a party to that conveyance either as grantor or as grantee.

The result of that deed was that the plaintiff thereafter held the twenty-six acres absolutely.

The deed had an additional effect. It divested the plaintiff of any interest in the remainder of the estate lands, and vested the entire interest in the remainder of those lands in Charles and Lincoln, subject to the mother’s life estate.

But there is something else which that deed purports to do in addition to conveying the land therein described. " It provides that it shall “be a receipt in full for all claims of Lydia Lawless against the estate of James Kerns, deceased. ’’ That clause can only have its full effect by referring it to the power in the will.It is held in Warner v. Conn. Mutual Life Ins. Co., 109 U. S. l. c. 365, that the instrument must, be 'treated as an execution of the power, whenever it cannot otherwise be given effect in all its provisions. It was said in Grace v. Perry, 197 Mo. l. c. 568: “The power of said Dougherty under the will was to dispose of ‘the absolute estate in fee simple. ’ By the deed, which was for a valuable consideration, he conveyed ‘ the absolute estate in fee simple’ as he must have intended what he said, and as he could not have conveyed the absolute title in fee simple except in execution of the power, this sufficiently indicates that the deed was made in execution of the power. ’ ’

The deed to the plaintiff purports to be in full of her. share of her father’s estate. If that deed is not effective as an execution of the power, the plaintiff would have not only the land thereby conveyed, but would have the same interest as the boys in what was left of the estate lands. In other words, if the deed was not an execution of the power, it was a gift of the interest of the mother and two brothers in the land thereby conveyed. Such evidently was not the intention of the parties.

We hold that there was a power of appointment given the widow by the will, and that the power was effectively executed, leaving the plaintiff without any interest in the land in controversy. The judgment is affirmed.

Blair, C., concurs.

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

All the judges concur.


source: Caselaw Access Project

author: FERRISS, P. J.

license: Public Domain

text:
    THE STATE v. STANLEY LAMB, Appellant.
    Division Two,
    May 9, 1912.
    1. APPEAL: instructions: Not Preserved. If the instructions are not preserved in the bill of exceptions complaints in the motion for a new trial of the refusal of the court to give certain instructions cannot he considered.
    2. -: Evidence: No Exceptions. Unless exceptions were saved at the trial to the rulings of the court upon the admission and exclusion of testimony, such rulings are not for review in the appellate court.
    3. -: Argument to Jury: Not Preserved. To obtain a ruling of the appellate court upon complaints to the argument of the prosecuting attorney to the jury, the matter complained of must he preserved in the hill of exceptions.
    4. ROBBERY: Indictment “from Person”: Proof “In Presence of”: Variance. A charge of robbery from the person is satisfied by proof that the money was taken in the presence of the person. In this case the information charged robbery “from the person” of a merchant, and it is 'heló, that th'e charge is satisfied by proof that defendant and another entered the - merchant’s store and while one of them pointed a pistol at him the other took money from the cash drawer in his presence.
    Appeal from Jackson Circuit Court. — Hon. Ralph 8. Latshaw, Judge.
    Aebtrme».

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) No instructions appear in the bill of exceptions as having- been asked and refused. There is no demurrer to the evidence in the bill. .(2) Appellant complains in his motion for a new trial for error committed by the court in the admission and exclusion of evidence, but nowhere can we find that he saved a single exception to any of the court’s rules tbereon. (3) Appellant complains in the ninth ground in his mo-lion for new trial of certain remarks of the attorney representing the State, to the jury, but fails to set any ■out, and we find no arguments whatsoever set out in the bill of exceptions. (4) The verdict was certain, definite and responsive to the issues, as it found the defendant guilty of robbery in the first degree. It will also be noticed that the information charges a robbery “from the person,” while the proof is that it was “in the presence.” This variance was not called to the attention of the trial court, and this could not be a material one, prejudicial to the rights of defendant. It also could not amount to the failure of proof because the offense charged was proven, but the manner of committing it was slightly different from the manner charged. It will not fall within the case of State v. Plant, 209 Mo. 307, where the charge was one of larceny of a diamond ring, the proof being the larceny of a diamond stud, two distinct acts of larceny, consequently the proof of one was not the proof of the one charged,, and, therefore, there was a failure of proof of the*crime charged. In appellant’s case the crime charged was that of robbery from the person by putting in fear, etc. The crime proven was that of robbery in the presence by putting in fear, etc. The ■larceny and the putting in fear by force and violence are the gravamen of the offense, rather than from the person or in the presence. We are aware that the case of State v. Crowell, 149 Mo. 391, holds that where the indictment alleges a robbery from a person by putting him in fear, it is error to find appellant guilty if he 'robbed by force and violence to the person. But a taking, we submit, in the presence is constructively a taking from the person. 34 Cyc. 1798, 1803; State v. Kennedy, 154 Mo. 268.
   FERRISS, P. J.

Conviction for robbery in the first degree, committed under the following circumstances, as testified to by witnesses for the State:

On the night of March SO1, 19101, the defendant and one other entered the store of the prosecuting witness in Kansas City. One of them pointed a pistol at the prosecutor and took money from the cash drawer in his presence, while the other kept watch at the doors.

The defense was an alibi testified to by the defendant.

Although the case comes up here upon a full bill of exceptions, there is no appearance in this court upon the part of appellant. We have, however, examined the record and bill of exceptions carefully, and. fail to find substantial error therein. There is no assignment of errors here. The motion for new trial complains of the refusal of the court to give certain instructions offered by the defendant, but such instructions are not preserved in the bill of exceptions. Complaint also is made of the rulings of the court upon the admission and exclusion of testimony, but no exceptions to such rulings were saved. Complaint is also made of the argument of the prosecuting attorney at the close of the case, but the matter complained of is not preserved in the bill of exceptions.

The information is in proper form; the verdict is responsive thereto; proper instructions were given covering all phases of the case, including alibi, and the verdict is in due form.

One single question, possibly, presents itself upon this record. The information charges robbery “from the person,” while the proof was that it was “in the presence” of the prosecuting witness. We do not regard this question as a serious one. At common law it was ruled that the charge of robbery from the person was satisfied by proof that the money was taken in the presence of the person. This, as a matter of construction. In Donnelly’s case, 2 East, P. C., 725, Lord Mansfield says, “If the owner threw down his money, or had it not about his person, at the time, though it were in Ms presence, these by construction have been holden to be equivalent to an actual taking from the person.” To the same effect is State v. Lawler, 130 Mo. 366 ; Breckenridge v. Commonwealth, 97 Ky. 267.

Finding no error in the record, the judgment is affirmed.

Kennish and Brown, JJ., concur.


author: KENNISH, J.

text:
    THE STATE v. THEODORE WASHINGTON, Appellant.
    Division Two,
    May 9, 1912.
    1. GRAND JURY: Impaneled Before Arrest: Negro: Discrimination. A defendant not under arrest nor held to answer a criminal charge when the grand jury which found the indictment against him -was impaneled, is precluded under the statute (Secs. 5067 and 5068, R. S. 1909) from attacking the indictment on the ground of the in competency of a grand juror, or because of any irregularity in the manner of selecting the grand jury; and, hence, a defendant not' under arrest nor held to answer a criminal charge when the grand jury was impaneled, cannot have the indictment against him quashed on the ground that he is a negro and the jury commissioner did not summon any per- . son of his race to sit on the grand jury.
    2. INDICTMENT: Motion to Quash: Not Preserved In Record. An assignment of error based on the action of the ’court in overruling appellant’s motion to quash the indictment will’ not he considered on appeal if such motion is not preserved in the record.
    3. INSTRUCTION: Reasonable Doubt: In Every Instruction. If a proper instruction on the subject of reasonable doubt is given, it is not necessary that the other instructions given should repeat that essential requirement.
    4. INSTRUCTION: Different Acts Charged: General Verdict. A verdict must he definite and certain as to the crime of which the accused is found guilty. The defendant is entitled to the unanimous verdict upon the issue of his guilt or innocence of the particular offense1 for which he was tried. Where the indictment charged that the defendant did “set up and keep divers gaming tables and gambling devices, to-wit, one crap table, and one poker table,” and there was testimony tending to prove the setting up and keeping of both gambling devices as charged, an instruction telling the jury that if they found defendant did “set up and keep certain gaming tables and gambling devices, to-wit, a crap table . . . and a poker table . . . or either of them . . . then you will find the defendant guilty as charged,” was error, and a verdict simply finding “the defendant guilty as charged in the indictment” cannot stand. Under the instruction and the general verdict returned some of the jurors may have believed the testimony in support of the charge as to one of the gambling devices and disbelieved the testimony as to the other, and the remaining jurors may have found and believed conversely, and a unanimous verdict as to ■ either may never have been reached.
    Appeal from St. Louis City Circuit Court. — Now. W. A. Taylor, Judge.
    Reversed and remanded.

      John A. Gernes and Thos. J. Rowe, Jr., for appellant.
    (1) Plea in abatement should have been sustained, as tbe methods of the jury commission of the city of St. Louis are'beyond the powers entrusted to him by the statutes. As a consequence, the grand jury that returned the indictment is an unlawful body, the defendant is deprived of his liberty without due process of law, has been denied the legal protection of the law and his privileges as a citizen have been abridged, violating the State and Federal Constitutions. (2) Instruction number 1 is erroneous, as it left out the element of “reasonable doubt” in the jury’s consideration of the evidence and in their finding of a verdict. It cannot be cured by a subsequent instruction; and- even if it could, it has not been. State v. Helton, 137 S. W. 988. (3) Where an indictment in one count charges more than one offense, a general verdict finding the defendant guilty, without specifying of which offense, is insufficient to support a judgment of conviction. State v. Burke, 151 Mo. 136; State v. Grossman, 214 Mo. 233; State v. Rowe, 142 Mo. 439; State v. Jones, 168 Mo. 398; State v. McCune, 209 Mo. 399 ; State v. Logan, 209' Mo. 401.

      Thos. B. Harvey also for appellant.
    (1) The trial court’s general instruction defining the offense was erroneous. It authorized the jury to convict if they should find that defendants had set up and permitted gambling upon either or both of the alleged devices within three years. The prosecution offered evidence tending to show that gambling had been permitted on both' the poker and the crap table; and if some of the jurors found that gambling had occurred on one table, and the balance of the jurors had found that gambling had occurred on the other table, this instruction would authorize a conviction under such circumstances. In other words, the jury need not be unanimous as to either table. Such, of course, would not be sufficient. There must be unanimity of the jury that defendants had set up and permitted gambling on a certain device. (2) The indictment identified the criminal transaction by naming the players and the date; but the instruction authorized a conviction if any one, though not named in the indictment, had been permitted to gamble within three years before the finding of the indictment. Time is not of the essence of this offense and need not be proved as laid; but if that means of identification is abandoned, so much the greater the necessity of identifying the particular occurrence for which the grand jury had indicted, by the players whom they alleged had participated.- (a) Whenever the crime alleged against a defendant is based upon a transaction between him and another, or upon an act of the defendant against another, then it is necessary to name that other person. The pleader recognized this fundamental rule of pro-. cedure and alleged the names; hut the instruction told the jury that the allegations were sustained if any person had been permitted to play. ■ The fact that the indictment alleged that others who played on the occasion were “unknown,” would not dispense with proof of at least one or more of those who were named. State v. Miner, 233 Mo. 331. (b) But even if it was not necessary to allege the names of the players, yet being alleged, the allegation could not be rejected as surplusage; for it is the chief element of the offense that the keeper of the device should permit persons to gamble by means thereof, and therefore it was material and necessary to allege that persons played, and any naming of those persons became a material averment because descriptive of that which was material. • State v. Samuels, 144 Mo. 72; State v. Harris, 209 Mo. 436. (3) The instruction should have confined the attention of the jury to one of the devices alleged in the indictment, or should have required them to state in their verdict of which device they convicted him.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Appellant alleges in his motion to quash that the grand jury that returned the indictment was composed of persons of the Caucasian race; that appellant is of African descent, a citizen of Missouri and of the United States; that the indictment was returned in the circuit court of the city of St. Louis, and that about ten per cent of the population of the city of St. Louis are negroes and many of them qualified in law by their intelligence and standing in the community, to perform grand jury duties, and the fact that persons of the Caucasian race composed said grand jury was not the result of inadvertence and accident, but was done purposely and intentionally. The summoning and impaneling of jurors are directory only. State v. Jennings, 98 Mo. 493; State v. Mathews, 88 Mo. 121; State v. Gleason, 88 Mo. 582; State v. Pitts, 58 Mo. 556. The record shows that the list of grand jurymen was selected in the usual way. State v. Jackson, 167 Mo. 291; R. S. 1909, secs. 7341, 7342.. Section 5068, Revised Statutes 1909, provides that no challenge to the array of grand jurors, or to any person summoned as a grand juror except for those causes mentioned in section 5067. This court has held that the only disqualifications that can he urged are those enumerated in this section. State v. Crane, 202 Mo. 54. There is no showing in the record that any grand juror was excluded because he was a negro, or for any other reason. The grand jury was regularly impaneled and sworn and was a legal grand jury. ' State v. Glasscock, 232 Mo. 278. (2) That a certain house or other’place was maintained or kept as a gaming house, may be shown by proof of its general reputation in the community, by the reputation of its inmates and frequenters as professional gamblers, and by the fact that gambling paraphernalia was found there. Underhill on Crim. Ev. (2 Ed.), sec. 475, p. 774; State v. Mosby, 53 Mo. App. 571. (3) Appellant contends that the verdict is indefinite and uncertain and, consequently, void, stating that the indictment charges more than one offense, and that the verdict is a general one. If appellant’s contention were true, then his argument might be possible, but the fact remains that the indictment is only in one count, charged upon one section of the statute, and has been held many times by this court to constitute but one offense. State v. Hall, 228 Mo. 456; State v. Cannon, 232 Mo. 205; State v. Mathis, 206 Mo. 604; R. S. 1909', sec. 4750'; State v. Baldwin, 214 Mo. 306; State v. Bluhely, 184 Mo. 187.
   KENNISH, J.

At the October term, 1910, of the circuit court of the city of St. Louis, an indictment was returned against appellant and Ollie Jackson, charging them with having set np and kept divers gaming tables and gambling devices. Appellant was granted a severance, and at the February term, 1911, of said court, was tried, convicted and sentenced to imprisonment in the penitentiary for a term of two years. He appealed to this court.

The State introduced evidence tending to show the following facts:

The building designated as number 2309 Chestnut street in the city of St. Louis, a tbree-story brick building, had been occupied for several years by the Modern Horseshoe Club. On the first floor there was a reception hall, parlor, barroom and buffet, all elaborately furnished. In the basement, which was reached by a stairway at the rear of the barroom, was a large room in which there were two pool tables. A poker game was operated regularly in 'the barroom, and a crap game in the basement, the pool tables being used as crap tables. Both games were played for money by the frequenters of the rooms. They were not “bank” games, but were games in which the players made the wagers with each other. There was a man in charge of each game, however, who collected from the players a “take-off” for “the house.” At each of the crap tables the man in charge of the game, at the time each bet was made, would take out of the money wagered five cents or more according to the amount of the bet. When the crap games were running, the defendant frequently went to the pool tables, counted the money taken in by the man in charge and took part of the money upstairs with him. This frequently happened several times the same night. He also played at the poker tables, and in one instance took charge of the “kitty” that belonged to “the house” and carried it away from the poker table. When the games were in progress the defendant was in constant attendance around the premises, watching the games and preserving order. A -witness who had previously been employed at the club as a bartender testified that the defendant was the manager of the club and sometimes paid the witness his wages.

The defendant testified in his own behalf as follows :

He was employed by the Modern Horseshoe Club and received a regular salary for his services. His duties were to ascertain whether or not people entering the building were members of the club, see that members coming into the rooms were seated and served, attend to the books and records and look after the interests of the club. He had no connection with the gambling games, had no control over them nor anything whatever to do with them and never received any profit or benefit from them. He never went to the basement room for money except to have bills changed in order to make change for a customer at the bar. The defendant’s own testimony was the only evidence offered by him.

I. Appellant filed two motions to quash the indictment, each of which was in turn overruled, and error is assigned to such action of the court upon each motion.

The first motion assailed the indictment upon the ground that the grand jury which returned it was an unlawful body in that the jury commissioner, in the selection of the grand jury, discriminated against the defendant, a negro, by not summoning any person .of his race to serve on that body. It appears from the facts recited in the motion that appellant was not under arrest nor “held to answer a criminal charge” when the grand jury which found the indictment was impaneled. By the provisions of section 5067, Revised Statutes 1909, “any person held to answer a criminal charge” may object .to the competency of a grand juror upon any of the grounds in said section stated. The next succeeding section provides that: “No challenge to the array of grand jurors, or to any person summoned as a grand juror/ shall be allowed in any other cases than such as are specified in -the last section. ’ ’ These statutes, as construed by this court, preclude the right of an indictee, not held to anwer a charge when the grand jury was impaneled, to attack the indictment on the ground of the incompetency of a grand juror, or because of any irregularity in the manner of selecting the grand jury. This question has been so fully considered in the decisions of this court, some of them recent, that further discussion would not be profitable. The ruling of the court was in accord with these precedents. [State v. Bleekley, 18 Mo. 428; State v. Crane, 202 Mo. 54; State v. Sartino, 216 Mo. 408; State v. Claybaugh, 220 Mo. 15; State v. Glasscock, 232 Mo. 278.]

The second motion to quash was based on the grounds (1) that the indictment was uncertain, vague and indefinite, and (2) on the ground of duplicity in charging two separate and distinct offenses in one count. This motion is not preserved in the record, and therefore the assignment of error founded thereon cannot be considered. [State v. Glasscock, 232 Mo. l. c. 291, and cases cited.]

II. Error is assigned to the giving of instruction numbered 1 by the court of its own motion, in that it did not require the jury to find the incriminatory facts by evidence showing guilt beyond a reasonable doubt. The reasonable doubt requirement, an essential to the conviction of crime, was not included in the instruction under review, but that question of law was fully covered by instruction numbered 5>, and it is settled that if a proper instruction upon the subject of reasonable doubt is given, if is not necessary that it should be repeated in each instruction.. [State v. Coleman, 186 Mo. 151; State v. Layton, 191 Mo. 613.]

Upon another ground this instruction contains error which will necessitate a retrial of this case. The indictment charged that the defendant did “set up and keep divers gaming tables and gambling devices, to-wit, one crap table, commonly so called, and one poker table, commonly so called,” etc., etc. There was testimony, though of different witnesses, tending to prove the setting up and keeping of each gambling device as charged. The instruction under review told the jury that if they found from the evidence that the defendant did ££ set up and keep certain gaming tables and gambling devices, to-wit, a crap table . . . and a poker table ... or either of them . . . then you will find the defendant guilty as charged,” etc., etc. The verdict was: “We, the jury in the above entitled cause, find the defendant guilty as charged in the indictment, and assess the punishment at-two years in the penitentiary.” In directing* the jury that they should return a verdict of guilty if they found that the defendant set up and kept' both or either of the gaming devices charged, the court erred. The defendant was entitled to a unanimous verdict of the jury upon the issue of his guilt or innocence of the particular offense for which, he was on trial. Under this instruction and the general verdict returned, some of the jurors may have believed the testimony in support of the charge as to one of the gaming* devices and disbelieved the testimony as to the other, while the remaining members of the jury may have found and believed conversely.

It is well established law that the verdict must be definite and certain as to the crime of which the accused is found guilty. If the instruction had submitted the case upon the theory of guilt as to both gambling devices (no motion to quash or elect having been filed), or as to one of such devices, specifically designating it, the conviction could have been sustained. But in the form in which the instruction was given it cannot be determined from the record .whether the defendant was convicted of setting up and keeping both tablee described or of only one, and if the latter, then which óne. For these reasons, under the decisions of this court, the instruction was clearly erroneous. [State v. Schenk, 238 Mo. 429; State v. Standley, 232 Mo. 23; State v. Pierce, 136 Mo. 34; State v. Pruitt, 202 Mo. 49; State v. Palmberg, 199 Mo. 233.]

Notwithstanding the strong evidence of the defendant’s guilt, because of error in the instruction, the judgment must be reversed and the cause remanded. It is so ordered.

Ferriss, P. J., and Brown, J., concur.


text:
    THE STATE v. OLLIE JACKSON, Appellant.
    Division Two,
    May 9, 1912.
    1. INDICTMENT: Gambling Device: Two Tables: One Felony. If the accused, as a part of the,same unlawful transaction and with the same felonious purpose, sets up and keeps two or more gambling tables, whether of the same or a different kind, it is but one felony and one indictment charging it is sufficient.
    2. -: -: Vague and Uncertain: Cards on One Table: Dice on Another. It is not necessary to charge that dice were played on one gaming table and cards on another, or dice and cards on both, and the indictment is not vague and uncertain because it does not so charge.
    3. JURORS: Railroad Employees: Directory Statute. The statute exempting railroad employees from jury service in the city of St. Louis is directory, and a convicted defendant is not entitled to a reversal of the judgment on the ground that the trial court overruled his challenge to three railroad employees summoned as talesmen.
    4. GAMBLING DEVICE: Keeping and Setting up: Competent Evidence. Where the charge in the indictment is for keeping, as well as for setting up, gambling devices, which necessarily implies a lapse of time in the commission of the crime, so as to make it a continuing offense, any facts and circumstances connected with the place where the gambling device • is kept during such time, tending to prove the charge, or concerning the conduct of the defendant in the management of the device, or any other gambling device in the same room or place and conducted as a part of the same plan or scheme, should be admitted in evidence.
    5. INSTRUCTION: General Verdict. The defendant is entitled to a concurrence of the minds of the jurors upon one definite charge of crime, and the verdict must be definite and responsive to such charge. Where under the instruction the jury may have convicted the defendant of keeping either of two gambling tables charged, one a poker table and the other a crap table, and some may have agreed to a verdict of guilty as to one table, and others to the same verdict as to the other table, and the verdict returned simply finds “the defendant guilty of setting up and keeping a gambling device, as charged in the indictment,” the verdict cannot stand.
    Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Reversed and remanded.

      John A. Gernez and Thos. J. Rowe, Jr., for appellant.
    (1) The indictment should have been quashed as uncertain, vague and indefinite and because of duplicity in charging two separate and distinct offenses. State v. Lee, 228 Mo. 499; State v. Chauvin, 231 Mo. 40; State v. Carragin, 210 Mo. 270; State v. Huffman, 136 Mo. 58; State v. Clevenger, 20 Mo. App. 628; State v. Bach, 25 Mo. App. 554; State v. Smith, 31 Me. 386; State v. Pidment, 35 Iowa, 541; State v. Burke, 151 Mo. 136. (2) Challenge to jurors for cause should have been sustained, as they are disqualified by statute. R. S. 1909, secs. 7341, 7342; State v. Wellser, 117 Mo. 577; Williamson v. Transit Co., 202 Mo. 365; Theobald v. Transit Co., 191 Mo. 418. (3) The court erred in admitting incompetent and irrelevant testimony; in admitting testimony that was hearsay; conclusions of witnesses, and merely matters of opinion. It was error to permit the State to impeach their own witness, Wm. Ransom. State v. Shapiro, 216 Mo. 359; Joyee v. Transit Co., Ill Mo. App. 565; Caldwell v. Bank, 100 Mo. App. 23; Hamilton v. Crowe, 175 Mo. 634. It was error for the court to pass upon the credibility of witness Ransom. State v. McKenzie, 177 Mo. 699; State v. Nolle, 96 Mo. App. 524; Briscoe v. Railroad, 118 Mo. App. 688; Dalton v. Poplar Bluff, 173 Mo. 39; Plugunin v. Hinds, 97 Mo. App. 346; Chenie v. Railroad, 100 Mo. App. 576. The court erred in permitting testimony as to the character and general reputation-of the Modern Horse Shoe Club. Underhill, Crim. Evid., sec. 475; Wharton, Crim. Evid., sec. 260; State v. Mosby, 53.Mo. App. 571. (4) The verdict is indefinite and uncertain' and consequently void. State v. Burke, 151 Mo. 146; State v. Pierce, 136 Mo. 34; State v. Rowe, 142 Mo. 442; 3 Graham & Waterman, New Trials, p. 1378; State v. DeWitt, 186 Mo. 67; State v. Cronin, 189 Mo. 671; State v. McGee, 181 Mo. 312; State v. Modlin, 197 Mo. 376; State v. Jones, 114 Mo. App. 343; State v. Grossmann, 214 Mo. 233; State v. McCune, 209 Mo. 399; State v. Logan, 209 Mo. 401; State v. Hudson, 137 Mo. 618.

      Thos. B. Harvey also for appellant.
    (1) The indictment is indefinite and uncertain. It charges that the appellant did set up and keep ‘ ‘ one crap table, commonly so-called, and one poker table, commonly so-called, upon which dice and cards were used,” etc. The most natural construction of this language is that both dice and cards were used in playing the game of chance for which the crap table was devised, and also in playing the game of chance for which the poker table was devised. Yet, when it came to a trial of the charge, the State’s expert witnesses testified that only dice were used on the crap table, and only cards on the poker table. Therefore, the evidence did not sustain the charge, and the appellant’s demurrer should have been sustained. Should it be held that the effect-of the language is to charge that dice were used on one table and cards on the other, then can it possibly be claimed that. the appellant was advised by the indictment on which of the two gaming tables dice are used, and on which cards are used? "Was there ever a clearer violation of the constitutional guaranty that the defendant shall be informed of the “nature and cause of the accusation;” and can it be seriously contended that this indictment does not do flagrant violence to the fundamental rule of criminal pleading that in all prosecutions for felonies, everything constituting the offense must be pleaded with certainty and clearness, and nothing left to be implied? Prom the infancy of this court this cardinal rule has been recognized and enforced. State v. Hardwick, 2 Mo. 226; Jane V. State, 3 Mo. 61; State v. Eector, 126 Mo. 328; State v. Evans, 128 Mo. 406. And the cases of State v. Derossett, 19 Mo. 383, and State v. Eeakey, 62 Mo. 40, announcing that, notwithstanding the Statute of Jeofails, a clear, substantive charge is as necessary now as it ever was, have been consistently followed by this court. (2) The indictment is duplicitous — it charges two distinct felonies in one count. A timely motion to quash was interposed, both on the ground of uncertainty and because of duplicity, was overruled and exception duly saved. Each gambling table constituted a separate felony. State v. Montgomery, 109 Mo. 645; State v. Poncher, 71 Mo. 460; State v. Burke, 151 Mo. 139. If an indictment charges more than one felony in a single count, a motion to quash should be sustained. State v. Pox, 148 Mo. 524; 22 Cyc. 376A; State v. Carragin, 210 Mo. 351.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is valid, sufficient and charges the offense in the language of the statute. Sec. 4750, R. S. 1909. The prohibition contained in the statute includes the setting up and keeping of any kind of gambling device, adapted, designed and devised for the purpose of playing any game of chance foj money or property. State v. Rosenblatt, 185 Mo. 114; State v. Mathis, 206 Mo. 610; State v. Lee, 228 Mo. 480; State v. Hall, 228 Mo. 456; State v. Lockett, 188 Mo. 418; State v. Cannon, 232 Mo. 205. (2) The indictment is not duplicitous. State v. Mathis, 201 Mo. 604; State v. Rosenblatt, 185 Mo. 114; State v. Miller, 190 Mo. 449; State v. Cronin, 189 Mo. 663; State v. Lockett, 188 Mo. 415; State v. Hall, 228 Mo. 456. (3) Appellant alleges in his motion to quash that the appellant was not given a preliminary examination, and that the grand jury that returned the indictment herein, was composed of persons of the Caucasian race; that appellant is of African descent, a citizen of Missouri and of the United States; that the indictment was returned in the circuit court of the city of St. Louis, and that about ten per cent of the population of the city of St. Louis are negroes .and many of them qualified in law by their intelligence and standing in the community, to perform grand jury duties, and the fact that persons of the Caucasian race composed said grand jury was not the result of inadvertence and accident, but was done purposely and intentionally. The summoning and impaneling of jurors are directory only. State v. Jennings, 98 Mo. 493; State v. Mathews, 88 Mo. 121; State v. Gleason, 88 Mo. 582; State v. Pitts, 58 Mo. 556. This record shows that the list of grand jurymen was selected in the usual way. State v. Jackson, 167 Mo. 291; secs. 7341, 7342, R. S. 1909. Section 5068, Revised Statutes 1909, provides that no challenge to the array of grand jurors, or to any person summoned as a grand juror except those causes provided for in section 5067. This section has been construed by this court to the effect that the only disqualifications that can be urged are those enumerated in this .section. State v. Crane, 202 Mo. 54. In State v. Claybaugh, 220 Mo. 15, it was held that neither the Constitution of Missouri nor of the United States undertook to designate what shall be the qualifications of either grand or petit jurors, and that the statute in this State makes full provisions as to the qualifications of both grand and petit jurors. The qualifications of a grand juror are purely statutory, and that statute merely directory. State v. Claybaugh, 220- Mo. 21. The record shows that no grand juror was excluded because he was a negro, or for any other reason. The grand jury was regularly impaneled, sworn and was a legal grand jury. State v. Glasscock, 232 Mo. 278. (4) Appellant complains of the action of the court in overruling the challenge of the defendant to jurors, because they were in the employment of a railroad company, said objection being based upon section 7342, Eevised Statutes 1909. This section enumerates persons who are exempt from service of jury duty, and among the exemptions are those “who are in the employ of any railroad company.” Appellant misconstrues this section because the exemption in said section, is personal to the juror, as the section provides, “the name of no person shall be taken down who shall, when called on by said commissioner, to establish to the satisfaction of such commissioner, by competent proof, and upon diligent inquiry made by said officer, a legal exemption from jury duty,” etc. Williamson v. Transit Co., 202 Mo. 345; Blyston v. Eailroad, 132 S. W. 1175. The statute exempting persons from jury service is merely directory. Moreover, no complaint is made as to the incompetency of these jurors. Furthermore, appellant did not point out the statutory exemptions. Thompson & Merriam on Juries, sec. 34, p. 31. The constitutionality of such statute has been doubted. (5) Challenges of a grand jury, or of its members, are of two kinds, to the array and to the polls. The former is for some imperfection in the constitution of the panel. The latter is for some disqualification of a juror. Sections 5067 and 5068, Revised Statutes 1909, comprise the provisions of challenge of the statute. No objection was made to any member of the' panel before the jury was sworn. Objections must be made at the time before this court will consider them. State v. Bleakley, 18 Mo. 431; State v. Sartino, 216 Mo. 408; State v. Griasscock, 232 Mo. 278. Appellant complains that the verdict is not certain or definite, but on the other hand it is indefinite and uncertain, and consequently void. While it may not be in the best form, yet the jury found the defendant guilty of setting up and keeping a gambling device as charged in the indictment. In other words, they took the pains to put in the verdict that for which they were trying the defendant. The words ££of- setting up and keeping a gambling device” were not necessary to have been put in the verdict, yet, these words do not necessarily make the verdict uncertain or void. You cannot read the verdict without reaching the conclusion that it is correct, or that the jury found the defendant guilty of that for which they were trying him. It is true that where both burglary-and larceny are charged, a general verdict is not given, and where forgery and the uttering of the forgery is charged, a general verdict is not good, for the reason it is uncertain under the evidence upon which the jury found the guilt or innocence of the accused. We submit that this surely is sufficient. Sec. 4750, R. S. 1909; State v. Baldwin, 214 Mo. 290.
   KENNISH, J.

Appellant was indicted in the circuit court of the city of St. Louis, at the October term, 1910,. for the felony of setting up and keeping gambling devices in violation of section 4750, Revised Statutes 1909. The indictment, so far as material, is as follows:

“ . . . And that the said Ollie Jackson and one Theodore Washington, on or about the first day of July, in the year of our Lord, one thousand nine hundred and ten, at the city of St. Louis aforesaid, did unlawfully and- feloniously set up and keep divers gaming tables and gambling devices, to-wit: one crap table, commonly so called, and one poker table, commonly so called, upon which dice and cards were used, which said gaming tables and gambling devices were adapted, devised and designed for the purpose of playing games of chance for money, property and poker chips, and did then and there unlawfully and feloniously entice and permit divers persons, to-wit: Bichard Sydnor, William Bansom, G-us Watson, William Palmer, Lee Marion, Frank Slaughter, Mitchell Pearl, Thomas Shaw, Joseph Menears, Andrew Yaughn, and divers other persons to these grand jurors unknown, to bet and play at and upon and by means of said gambling tables and gambling devices; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

A severance was granted, and upon a separate trial the defendant was convicted and sentenced to the penitentiary for a term of two years. From the judgment and sentence he appealed to this court.

This is n companion case to the case of State v. Washington, decided at the present term of this court, 242 Mo. 4.01, and reference is here made to the statement of facts in that case, which was sufficiently similar for the purposes of this opinion. In addition to the facts stated in the Washington case, it is sufficient to say that there was ample evidence to prove the charge as made in the indictment.

I. The defendant filed a plea in abatement to the indictment which, in the record before us, is called a motion to quash. This plea was filed and disposed of before the severance, and attacked the indictment on the ground that the grand jury that returned it was not legally summoned and therefore because of the irregularities in its selection it was an unlawful body and the indictment invalid. The action of the court in overruling this plea in abatement was considered and approved in the case of State v. Washington, supra, and need not be further discussed in this case.

II. Upon the overruling of the defendant’s plea in abatement, a motion to quash the indictment was filed, alleging the grounds (1) that the indictment was indefinite, vague and uncertain, and (2) that it was duplicitous in that it charged two separate and distinct offenses in one count. The motion to quash was overruled, and the defendant has properly preserved his exceptions for review on this appeal.

The motion to quash the indictment was properly overruled. The statute upon which the prosecution was based forbids the setting up or keeping of any gambling table or gambling device, etc. If the same person violates the statute by keeping more than one table, at the same time and place and as one transaction, there is no more reason for dividing such act into so many separate and distinct felonies as there were tables than there would be for making the number of felonies equal the number of animals stolen under the statute making it grand larceny to steal “any horse, mare, colt,” etc. It is a felony to steal one horse, but the theft does not amount to two felonies because instead of one two are stolen. If the accused, as part of the same transaction and with the same felonious purpose, sets up and keeps two gambling tables, whether the same or different in kind, no valid reason can be given why he may not be prosecuted for such act as if he had set up and kept but one. Upon the trial of the case, if it should be developed by the evidence that the tables were not set up or kept as one transaction, at the same time and place, then the State should he required to elect upon which table it would ask a conviction.

The complaint of vagueness and uncertainty in the indictment is too refined and technical to be seriously considered as a sufficient cause for reversing the judgment and granting a new trial. Whether dice were played upon one table only and cards upon the other, or whether both dice and cards were used upon either table indiscriminately, was a matter of evidence, and it does not follow as a question of law that the indictment was vague and uncertain by reason of those facts.

III. Section 7342, Eevised Statutes 1909, of the jury law in force in the city of St. Louis, exempts from jury service, among others, persons otherwise qualified who are in the employment of any railroad company, and it is made the duty of the jury commissioner to omit from the list of jurors all persons found to be exempt from such service. It is further provided in the same section that it shall be the duty of the court to excuse from service as a juror any person whose voir dire examination discloses that his name should not have been placed on the jury list when such person is challenged for cause by any party to the suit.

Three of the talesmen on their voir dire examination testified that they were railroad employees, and the defendant challenged them for such cause. The court overruled the challenges and appellant, having-saved his exceptions to such rulings, assigns error. Technically appellant did not bring his challenges for cause within the letter of the statute for, although it appeared that the jurors were in the railroad service when examined in court, it does not follow that they were in such service and therefore exempt at the time when placed upon the jury list by the commissioner. But, waiving that question, there is nothing in the record to show that such jurors were not qualified to sit as jurors in the case except for the statute exempting them from being subject to jury duty, which may be regarded as directory, and as the defendant was not prejudiced by such ruling this court would not be authorized to grant a new trial upon that ground. We do not regard the case of Wiliamson v. Transit Co., 202 Mo. 345, as in conflict wjth the views herein expressed. While it would have been the safer course had the court sustained the objections to the jurors and thus have eliminated any question as to their qualifications, yet, for the reasons given, we must hold against the appellant upon this point.

IY. Many objections were made and exceptions saved to the rulings of the court in the admission and exclusion of testimony, and such rulings are now urged as grounds for the reversal of the judgment. We have decided, upon a ground hereafter to be noticed, that a retrial of this case will be necessary, and in view of the many recent decisions of this court in cases bottomed on the same statute as the case at bar, we do not consider it necessary to take up in this opinion each one of such alleged errors. It is sufficient to say that as the charge is for keeping, as well as for setting up, the gambling devices described, and necessarily implies a period and lapse of time in the commission of the crime, so as to make it a continuing offense, any facts and circumstances connected with the place where the gambling device is kept during such time, tending to prove the charge, or concerning the conduct of the defendant in the management of such device, or any other gambling device in the same room or place and conducted as a part of the same plan or scheme, should be admitted in evidence.

Y. The verdict of the jury was as follows: “We, the jury in the above entitled cause, find the defendant guilty of setting up and keeping a gambling device, as charged in the indictment, and assess his punishment at two years in the State penitentiary.”

Instruction numbered 1 in this case contains the ' same vice as the instruction condemned in the case of State v. Washington, supra, decided at the present term of this court. Under this instruction and the verdict returned the jury may have convicted the defendant of keeping either of the two tables charged, or some of the jurors may have agreed to a verdict of guilty as to one table, while the other members reached the same result as to the other table. The setting up and keeping of either table was an offense, and it cannot be determined from this record which of the tables charged the defendant was found guilty of setting up and keeping. The defendant is entitled to a concurrence of the minds of the twelve jurors upon one definite charge of crime, and the verdict must be definite and responsive to such charge.

For the reasons and under the authorities set forth in the Washington case we are constrained to hold the instruction was erroneous and in consequence thereof the verdict was indefinite and uncertain. For the reasons given the judgment is reversed and the cause remanded.

Ferriss, P. J., and Brown, J., concur.


text:
    MODERN HORSE SHOE CLUB v. A. C. STEWART et al., Appellants.
    Division Two,
    May 9, 1912.
    1. INJUNCTION: To Protect Violation of Law: Hygienic Club. A plaintiff: is not entitled to an injunction to protect him in the continued violation of law. A club, organized as a corporation under the statutes relating to fraternal and benevolent organizations, is not entitled to an injunction against the police, to protect it in selling liquor in violation of law; and although the police continually raid its place of business and arrest its members as vagrants, that does not entitle the club to an injunction to put a stop to such raids and arrests where the real purpose of the suit is to enable the club to illegally sell liquors. Although the police are not justified in resorting to illegal means to break up an illegal business, an illegal business cannot invoke the aid of a court of equity to continue its existence.
    2. -: -: When Equity Interferes. To maintain a suit in equity plaintiff must show himself to be in the exercise of legal rigfits which will be destroyed without the intervention of a court of equity. It is hot the province of equity to assist a wrongdoer in the violation of law; and even though the police, in their attempts to put an end to a disorderly and illegal business, may use oppressive measures and may even become trespassers, yet a court of equity will not, under a prayer to restrain those oppressive acts, do so for the sole purpose of enabling plaintiff to continue the disorders and illegal business. A plaintiff must come into a court of equity with clean hands.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Reversed.
    ■ Charles Bates, C. P. Williams, Lambert E. Walther and Robert BurJcham for appellant.
    (1) The respondent is not legally entitled to engage in the sale of intoxicating liquors, and its officers, members or agents in doing so are guilty of the continuous commission of criminal acts. State ex rel. v. Club, 125 Mo. 308; State v. Tindall, 40 Mo. App. 271; Black, “Intoxicating Liquors,” secs. 142, 528; Woolen and Thornton “The Law of Intoxicating Liquors,” sec. 798. (2) It is not only the right but it is the duty of police officers to make arrests whenever they have reasonable grounds to believe an offense has been committed. State v. Underwood, 75 Mo. 230; State v. Grant, 76 Mo. 236; R. S. 1909, sec. 9805; State v. Hancock, 73 Mo. App. 19; Wehmeyer v. Mulvihill, 150 Mo. App. 197; State v. Boyd, 108 Mo. App. 518; State v. Flynn, 119 Mo. App. 712; R. S. 1909, sec. 4748;’ R. S. 1909, sec. 4749; State v. Albright, 144 Mo. 638; Boeger v. Langenberg, 97 Mo. 390; Weiss v. Herliby, 23 App. Div. (N. T.) 608. (3) A court of equity will not interfere by injunction to restrain or control the exercise of discretion by police authorities in the. prevention of crime and in the maintenance of peace, and a decree having this effect is 'violative of article 3 of the Constitution. 2 Bouvier, Law Diet., p. 691; Black’s Law Diet., p. 909; Freund on Police Powers, sec. 86; Weiss v. Herlihy, 23 App. Div. (N. V.) 608; R. S. 1909, sec. 9805; 22 Cyc. 879, 889; 3 Abbott on Municipal Corporations, secs. 1130, 1137; Spelling on Injunctions, secs. 628, 691; Kerr on Injunctions, p. 4; High on Injunctions (4 Ed.), sec. 1326; Gaines v. Thompson, 74 U. S. 352; Decker v. Diemer, 229 Mo. 296; State ex Tel. Wear v. Francis, 95 Mo. 44; Federalist Papers, No. 47; State ex inf. v. Sheppard,-177 Mo. 205; Albright v. Fisher, 164 Mo. 56. (4) Respondent does not come into equity with clean hands and should therefore be denied relief. 1 Pomeroy “Equity Jurisprudence,” secs. 397, 398; Pipe Co. v. Reservoir Co., Ill Fed. 284; Bein v. Heath, 6 How. (U. S.) 288; Creamer v. Bivert, 214 Mo. 473; Houtz v. Heilman, 228 Mo. 655; Little v. Cunningham, 116 Mo. App. 545’; Rose v. Smith, 167 Mo. 81; Woolen and Thornton, “The Law of Intoxicating Liquors,” sec. 748; Comm, v. Tierney, 148 Pa. St. 552; Comm. v. Enig, 145 Mass. 119; State v. Tindall, 40 Mo. App. 271; Morrison v. Juden, 145 Mo. 283; Medicine Co. v. Wood, 108 H. S. 218; Journal Co. v. Pub. Co., 127 Mo. App. 356; Railroad v. Crothersville, 159 Ind. 330; Beck v. Stock Co., 65 Fed. 30; Danciger v. Stone, 187 Fed. 853; Pons v. Whitman, 147 Cal. 280; Weiss v. Herlihy, 23 App. Div. (N. T.) 608. (5) Equity has no jurisdiction in criminal matters and will neither enjoin the commission of a crime nor an arrest therefor, nor will equity even inquire whether a crime has been committed. State ex rel. v. Lamb, 142 Mo. 398; R. S. 1909, sec. 4411; R. S. 1909, sec. 4420; Davis v.- Society, 75 N. Y. 368; Sterman v. Kennedy, 15 Abb. Pr. (N. Y.) 201; Kramer v. Police, 53 N. Y. Sup. Ct. 492; Campbell v. York, 30 Misc. 340; Delaney v. Flood, 183 N. Y. 323; Stevens v. McAdoo, 112 N. Y. App. Div. 458; Shepard v. Bingham, 125 N. Y. App. Div. 784; Club v. Speer, 29 Colo. 158; Adams v. Oyster Co., 34 Colo. 219; Chicago v. WrigHt, 69 111. 318; Moses v. Mayor, 52 Ala. 208; Caille Co. v. Haager, 50 S. W. (Ky.) 244. (6) Respondent has-an adequate remedy at law. Sullivan v. Gas Co., 148 Cal. 368; Fincke v. Police, 66 How. Pr. (N. Y.) 318; Kenny v. Martin, 11 Misc. (N. Y.) 651; Suesskind v. Bingham, 125 N. Y. App. Div. 787; Moore v. Owen, 109 N. Y. Supp. 585; Sterman v. Kennedy, 15 Abb. Pr. (N. Y.) 201; Delaney v. Flood, 183 N. Y. 323.

      T. J. Rowe and Hiram N. Moore for respondent.
   FERRISS, P. J.

Bill for injunction filed in the circuit court of the city of St. Louis in November, 1907, by the Modern Horse Shoe Club, a corporation organized under the statutes relating to fraternal and benevolent organizations, and against the members of the board of police 'commissioners of the city of St. Louis, the chief of police, and one Gaffney, captain of police, commanding in the eighth police district of said city.

The bill alleges that the plaintiff is authorized to maintain and does maintain on the premises, number 2309 Chestnut street, in said city, a club house, consisting of twelve rooms, with furniture, fixtures and appurtenances; that the membership of the club is limited to male negro citizens of said city of good moral character, who believe in the teachings and principles of good government, and that its members are and were at all times so qualified; that each member paid an initiation fee of one dollar, and dues of one dollar every three months; that the expense of maintaining the club is derived from the fees and dues aforesaid, and from the distribution of food and drink furnished to its members; that in order to maintain itself and pay its expenses and indebtedness it is necessary that plaintiff should be enabled to furnish its members with club accommodations and facilities, and dispose of its supplies on hand to its members; that on several occasions the defendants raided and caused to be raided the club house and premises, and wrongfully and wantonly, and without process .of law, arrested and caused to be arrested members of said club under the false charge of vagrancy; that said defendants have threatened and are now threatening to arrest each and every one of plaintiff’s members found in said club house, and prosecute them under the false charge of idling; that by so doing they have terrorized the members of the club and prevented them from using and ^enjoying the club and its facilities; that the defendants have caused, and are now causing daily, the police officers of the city to visit the premises of the club, without any reason therefor, and for the only purpose of terrorizing the members of said club and disrupting said organization; that defendants are threatening to continue said illegal raids and unlawful arrests so long as plaintiff operates its club house, and have ordered the officers of plaintiff to close its said club house under threat of arrest and prosecution. Plaintiff further alleges that- its organization was made in good faith; that it maintains its club house in good faith, that at no time has anything unlawful or improper occurred therein; that its members are not vagrants, but law-abiding, industrious and hard-working men, and that they only enjoy, and will be permitted to enjoy, such privileges as plaintiff is authorized to furnish them by the terms of its charter, and that plaintiff has at no time exceeded its rights under its charter; that if defendants are permitted to carry their said illegal threats into effect, the result will be irreparable damage to plaintiff, and will deprive plaintiff’s members of the rights and privileges to which membership in plaintiff’s organization entitles them, and in the enjoyment of which they have a right to be protected by law.

Wherefore plaintiff prays a perpetual injunction against the defendants, restraining them from in any way molesting or interfering with plaintiff’s members, officers or agents in or about said club, because of their being there, or on any false and pretended charge of vagrancy.

On the filing of this petition a temporary injunction was issued as prayed for.

The answer of the defendants denies each and every allegation in the petition, and for further answer alleges that plaintiff is not the real party in interest; that the plaintiff does not come into a court of equity with clean hands; that the pretended plaintiff corporation was not and has not been, up to the filing of this suit, conducted as a benevolent, religions, scientific, fraternal-beneficial, or educational institution or corporation, but for the purpose of evading the statutes of the State and the ordinances of the city of St. Louis relating to dramshops and the sale of intoxicating liquors; that the said pretended club was constantly being conducted for the aforeasid unlawful ends, up to the time of the filing of this suit; that said club has frequently been resorted to by, and has been the common lounging place and rendezvous of ex-convicts, thieves, vicious and dissolute women and other criminal characters of the negro race, and that the said pretended club is controlled and operated for purposes of private, pecuniary gain by one-Ollie Jackson, with the aid and assistance of persons to defendants unknown, and was organized by him shortly after his release from serving a term in the State penitentiary; that prior to and up to the filing of plaintiff’s petition, said premises were the nightly scene of gambling, disturbances of the peace, and violations of the laws of the State relating to the sale of liquor, and was not a bona ficle olnb, conducted for the sole use and benefit of its members, and that said pretended club has, since the date of its organization, been what is popularly known as a lid-lifting club, and ought not to be protected by the court.

To this answer plaintiff filed a general denial.

The cause was heard at great length upon the facts, at the conclusion of which the court rendered a decree dismissing the bill as to all the defendants except Gaffney, and perpetually enjoining defendant Gaffney, his successors in office and subordinates, and the officers and men of the police force under them, from raiding or arresting, or in any way molesting or interfering with, plaintiff’s members, its officers, agents, employees or servants, while in or about plaintiff’s club house and premises, solely because of their being there, or from arresting on the premises of plaintiff said members on any false or pretended charge of vagrancy. Defendant appeals.

The evidence substantially sustains the allegations of the answer, and shows that the corporate form was used as a cloak under which the so-called club engaged in the sale of liquor in violation of law. Practically the only activities conducted -in the club consisted in the selling of liquor and card' playing. Liquor was sold over a counter in a room fitted up like an ordinary barroom,, and was sold for cash at the same prices charged in licensed saloons. Such sales were conducted on every day of the week, including Sunday, and all night long. The evidence, on the other hand, shows that the police, acting under instructions from defendant Gaffney, attempted to break up this club by repeated raids and arrests made for that avowed purpose; that members were arrested as vagrants, and the charges subsequently dismissed; that such arrests were made not for the purpose of prosecution on charges of vagrancy, but for the sole purpose of breaking up the club. It further appears that the police entered the premises peaceably, quietly and without opposition, and that no injury was done or threatened to the physical property of the club.

The learned chancellor who tried the case below indicated very clearly in his opinion that he regarded the testimony sufficient to forfeit plaintiff’s charter in a proper proceeding for that purpose, but condemned in vigorous language, as illegal, the methods instituted by the police to break up this establishment, and suggested that the proper method is by a proceeding in quo warranto. lie held, properly, that in the city of St. Louis the police may, without a warrant, make an arrest upon a well grounded suspicion that a crime, either felony or misdemeanor, has been committed. He was, however, of the opinion that repeated raids and arrests, upon charges of vagrancy, which were made for the avowed purpose of breaking up the club, and not for bona fide prosecution, were continuing trespasses which equity should enjoin, even conceding the truth of the allegations of the answer.

Without criticising the conclusions reached below as to the rights and duties of the police, and the character of their acts complained of, we are of the opinion that the chancellor did not give sufficient consideration to the question preliminary to all others i. e., does the plaintiff show that its own conduct has been such as to justify it in asking relief in equity? In other words, does plaintiff come before the court with clean hands regarding the matter in controversy? This is not a proceeding instituted in behalf of individual members of the club who claim to have suffered from illegal arrests made by the police. The plaintiff invokes the aid of the court of equity to protest it in the exercise of rights which had been granted it by law. Such is the distinct claim of the bill. The court is not asked to punish the police officers for oppression in office, nor to mulct them in damages for injuries to the rights of plaintiff or its members. Its aid is invoked to protect plaintiff’s right to exercise its functions as a club under the authority of its charter.

The first question to be considered is, whether such right of plaintiff is involved in this controversy. In this matter we must be governed, not by the allegations of the bill as to the rights of plaintiff under its charter, but by the proof as to what rights in point of fact are threatened with destruction by the action of the police. The only “right” which plaintiff has exercised and desires to continue to exercise is the right to sell liquor in violation of law. If the efforts of the police are successful and result in breaking up the establishment, this is, according to the evidence, the only substantial privilege that will be affected. Therefore, this suit in effect asks the court to protect plaintiff in its continued violation of law. The very statement of this proposition suggests the answer. The necessary effect of this injunction is to permit the plaintiff to continue to sell liquor without a license, and otherwise violate the law. We do not mean to say that the police are justified in resorting to illegal means to break up an illegal business, hut we do mean to say that an illegal business cannot invoke the aid of a court of equity to continue its existence. If the police have adopted a high handed and even illegal method of procedure, the law affords a remedy, either by prosecution for the crime of oppression in office or by suit for damages. If the legal rights of a plaintiff are invaded, and there is no adequate relief at law, a court of equity will protect such rights by injunction, even if such protection require it to enjoin acts criminal in character. The primary question is not whether defendant has committed crime, or whether he is a trespasser. The first pertinent inquiry is, whether plaintiff has shown itself to be in the exercise of legal rights which will be destroyed without the intervention of a court of equity. If this inquiry is answered in the negative, the relief should be denied. The plaintiff in preparing its bill, very properly realized that it must show that the rights for which it was seeking protection were within the law. It therefore alleges that its organization was made in good faith; that nothing unlawful or improper had occurred, or would occur, within its club rooms; that its members were law-abiding, industrious, hardworking men, and that they enjoyed, and would be permitted to enjoy, only such privileges as plaintiff was authorized to furnish by the terms of its charter, and that plaintiff has at no time exceeded its rights under its charter.

And what is the threatened injury? Here is the allegation in the bill on this point; “The result will be irreparable damage to plaintiff, and will deprive plaintiff’s members of the rights and privileges to which membership in plaintiff’s organization entitles them, and in the enjoyment of which they have a right to be protected by law.”

The bill clearly demands protection for such rights only as are granted plaintiff by its charter. The case breaks on this point. The evidence not only does not sustain these allegations of the bill, but shows clearly, and without substantial dispute, that the so-called rights now sought to be protected are simply violations of law.

In the case of Weiss v. Herlihy, 23 App. Div. (N. Y.) 608, under facts quite similar to those in this case, the court uses this language, which we consider entirely proper here: “This plaintiff, according to the testimony made to appear upon this record, is persistently and flagrantly using these premises for a disorderly house in violation of the statute. He asks the help of the- equitable power of the court practically for the purpose of permitting him to continue that violation of law. It is apparent that an injunction could have no other effect, and that just as soon as the observation and inspection of the police was withdrawn from this place, this gambling house would be reopened, to the scandal and inconvenience of the neighborhood. A court of equity will not permit its process to be perverted to any such purpose. Assume that the legal rights of this plaintiff are being infringed. If that be true, he must enforce them by the proper proceedings at law, and if he can do so, undoubtedly his rights will be protected or he will be recompensed for any violation of them; but if the law affords him no protection, equity will certainly not help him by putting its hand upon the officers of the law who are seeking to perform their duty — although possibly in a manner oppressive to this plaintiff— and restraining them for no other purpose than that this man may go on with his violations of the law unmolested and unwhipped of justice.”

To the same general effect are Beck v. Flournoy Live-Stock Co., 65 Fed. 30; Pon v. Wittman, 147 Cal. 280; Pittsburg Ry. Co. v. Town of Crothersville, 159 Ind. 330.

"What we say in this opinion cannot be construed as a justification of illegal methods, if any, adopted by the police. As a court of equity, we refuse relief to plaintiff, not because some of its members are bad men; not because its manager and practical owner is an ex-convict; not merely because the evidence shows good grounds to forfeit its charter; not because we justify the actions of the police; but because the plaintiff does not come into court with clean hands concerning the very subject-matter of this controversy, namely, its legal rights under its charter, and because it is not the province of equity to assist a wrongdoer in violating the law.

The judgment is reversed and the bill dismissed.

Kennish and Brown, JJ., concur.


author: BLAIR, C.

text:
    THE STATE v. THOMAS HOWARD, Appellant.
    Division Two,
    May 9, 1912.
    1. INFORMATION: Constitutional Formula. The constitutional formula, “against the peace and dignity of the State,” is not required at the close of each part of an information, even though such part may charge all the elements of some offense for which the State may proceed. It is required only at the end of the entire information or at the end of each separate count, which ■ — is the same thing.
    2. -: Burglary with Explosives. The information, after charging an unlawful and burglarious entry, alleges that nitroglycerine or some other high explosive was used by defendant “for the purpose and with the felonious intent ... of breaking into and demolishing” a safe, and that the safe was demolished. Held, that, since the destruction of “any building or other property” by.another by the use of explosives is a felony under Sec. 4599, A S. 1909, the information sufficiently charges the use of explosives to commit a crime,, under Sec. 4526, R. S. 1909. A reasonably precise statement of the elements of the offense which defendant, after his burglarious entry, intended to commit by the use of the explosives is all that is necessary, and the minuteness of allegation, which might be demanded in an indictment for the commission of such offense is not required.
    3. JUDICIAL NOTICE: Clouds. The Supreme Court cannot take judicial notice of the presence of clouds in the sky at a given time.
    4. EVIDENCE: Discrepancies for the Jury’s Consideration. Where a witness testifies in a prosecution for burglary with explosives that he saw the defendant, at 3:15 a. m., run through an alley behind the building in which the explosion had just occurred, a discrepancy between the memory of the witness and the almanac as to the exact position of the moon at that time was for the consideration of the jury in determining the credit to be given the witness’s testimony.
    5. -: Sufficiency: Burglary with Explosives. Evidence in a prosecution for burglary with explosives held sufficient to support the verdict.
    6. INSTRUCTIONS: No Exceptions. Where no exception has been saved to the instructions their correctness is not before the Supreme Court on appeal.

      Appeal from Jackson Circuit Court. — Hon. Ralph S. Latshaw, Judge.
    Affirmed.

      W. F. Riggs for appellant.
    (1) The identity of the defendant as the person who committed the crime, barring the testimony of John Shoemaker, was wholly circumstantial, and the chain is not complete. The morning of Jan. 11, 1911, at 3:15 a. m., was cloudy, and the moon set at 3:50 a. m. Could a witness be more thoroughly impeached? When such a case occurs, relief will be granted by this court. State v. Huff, 161 Mo. 459; State v. Pack-wood, 26 Mo. 340; State v. Primm, 98 Mo. 373; State v. Francis, 199 Mo. 671. “Courts will take judicial notice of the almanac, or as it has been put, the almanac is a part of the law of the land.” 1 Ency. Ev. 768. ' “And the almanac is competent evidence to prove the time of the rising and phase of the moon.” 1 Ency. Ev. 769. (2) The information is in two paragraphs. The first paragraph is insufficient in law to charge burglary in the second degree, because of the omission to allege that the acts and facts alleged in the first paragraph were “against the peace and dignity of the State.” State v. Skillman, 209 Mo. 408; State v. Campbell, 210 Mo. 202. We have two statutes leveled against burglary with explosives, secs. 4526 and 4599, E. S. 1909. Under section 4599, the vital and essential elements are the wilful and malir cious injury of the property of another, without which an indictment or information would be fatally defective. 2 Whart. Crim. Law (8 Ed.), No. 1079; State v. Crenshaw, 41 Mo. App. 24; State v. Boies, 68 Kan. 167; People v. Jones, 241 111. 482. With the law in this condition the Legislature enacted, sec. 4526. “An indictment based on a statute must contain all the forms of expression and descriptive words which are necessary to bring the defendant precisely within the definition of the statute.” State v. Miller, 132 Mo. 297; State v. Hesseltine, 130 Mo. 468; State v. Hall, 130 Mo. 170; State v. Helderie, 203 Mo. 574; State v. Pitts, 58 Mo. 556; People v. Flack, 125 N. Y. 324. (3) The information is fatally defective under section 4526. The information negatives the fact of explosives being used in committing the burglary. It expressly avers that after the burglary was complete said “Marcus Stevens and Thomas Howard did then and there use a certain high explosive for the purpose of breaking into and demolishing a certain iron safe.” It is not alleged that the demolishing of the safe was “with intent to commit some crime,” or “for the purpose of committing any crime.”

      Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for respond- , ent; A. Z. Patterson of counsel.
    (1) The information charges the essential facts constituting the crime of burglary with explosives, as defined by section 4525, Revised Statutes 1909. (2) The evidence amply sustains the verdict. The circumstances and facts in evidence showing defendant’s guilt were consistent with each other and were absolutely inconsistent with any reasonable theory of. his innocence. They were sufficient to show defendant’s guilt, though they only constituted circumstantial evidence thereof.
   BLAIR, C.

This is an appeal from a judgment of the circuit court of Jackson county sentencing defendant to twenty-five years in the penitentiary for the offense of burglary with explosives, as that offense is defined by section 4526, Revised Statutes 1909.

The information charges defendant and one Stevens with burglariously and feloniously breaking and entering a saloon at 2404 East Eighteenth street in Kansas City, with intent to steal goods therein, and proceeds as follows: “And the said Marcus Stevens and Thomas Howard alias Tom Fallon alias Bradley alias Elliott after having feloniously and burglariously broken and entered into said building in the manner aforesaid and by the means aforesaid did then and there and while in said building use a certain high explosive, to-wit: nitroglycerin, and other high explosives unknown to the prosecuting attorney, for the purpose of and with the felonious intent then and there of breaking into and demolishing a certain iron safe then and there being and in said building situate, the property of the said Powers and Beghtol, in which said iron safe there was then and there valuable things kept and deposited, and by the use of said nitroglycerin and other high explosives unknown to the said prosecuting attorney did break into and demolish said safe; and the said Marcus Stevens and Thomas Howard alias Tom Fallon alias Bradley alias Elliott, four ($4) dollars lawful money of the United States of the value of four dollars the property of the said Powers and Beghtol then and there being in said building did then and there unlawfully, feloniously and burglariously steal, take and carry away, against the peace and dignity of the State.”

Defendant was tried separately. The evidence for the State tended to show that defendant and Stevens were rooming together on East Seventeenth street in Kansas City for some days prior to the commission of the offense of which the former was convicted; that about 11 p. m. on the night of January 10th they were seen together in a saloon at 2400 East Eighteenth street, three doors from the saloon subsequently burglarized and again at 2:45 a. m. on January 11, 1911, were seen, not together but about the same time, at the corner of Eighteenth and Olive streets whence defendant proceeded north and Stevens east on Eighteenth, street toward Powers and Beghtol’s saloon. One half hour later an explosion was heard and a witness who was attending what he termed a wake at the premises in the rear of the saloon and who had gone into the intervening alley saw defendant running along the alley from the rear of the saloon. That Powers and Beghtol’s saloon had been burglarized and entrance effected by cutting through a rear door and that an iron safe therein had been blown open and entirely demolished by some high explosive is established by the testimony of numerous witnesses. A bottle half full of nitroglycerine was found in the saloon. A small amount of money was taken. On the night of January 13, 1911, defendant and Stevens were arrested in their room at Seventeenth street. A complete kit of burglars’ tools was found in the room. Defendant testified in his own behalf. He volunteered the information that he had served terms in several State prisons and had participated in one desperate attempt to escape from that of Colorado. He and Stevens testified that they were not in the vicinity of the burglarized saloon on the night in question and defendant declared he never-had been except when transferring from one street car to another at a nearby corner. No exceptions were saved to instructions given.

I. The information clearly and with particularity charges defendant and Stevens with breaking and entering the saloon in the nighttime and the substantial sufficiency of this part of the information is not assailed except it is suggested that it should have concluded “against the peace and dignity of the State.” There is nothing in this contention. The burglarious breaking and entering is, under section 4526, but one element of an entire offense which consists of both such entering and the subsequent use, in the burglarized building, of certain explosives for the purpose of committing a crime. The constitutional formula is not required at the close of each part of an information, even though such part may charge all the elements of some offense for which the State might have proceeded. It is required only at -the end of the entire information or at the end of each separate count, which is the same thing.

The insistence most earnestly made is that there is no sufficient allegation that nitroglycerin or other high explosive was, after the building was entered, used “for the purpose of committing a crime.”

The information, after charging the unlawful and burglarious entry, alleges that nitroglycerin or some other high explosive (unknown to the prosecuting attorney) was used by defendant “for the purpose and with the felonious intent then and there of breaking into and demolishing a certain iron safe, the property of Powers and Beghtol,” and that by such means the safe was actually broken into and demolished.

The destruction of “any building or other property” of another by the use of explosives is declared a felony by section 4599, Revised Statutes 1909 and the part of the information quoted sufficiently charges defendant with employing nitroglycerin, etc., with the intent to destroy the iron safe and with actually so destroying it, and, consequently, sufficiently charges the use of such explosives with intent to commit a crime under the section mentioned. A reasonably precise statement of the elements of the offense which defendant, after his burglarious entry, intended to commit by the use of the explosives is all that is necessary, and the minuteness of allegation which might be demanded in an indictment for the commission of such offense is not required. [State v. Stubblefield, 157 Mo. l. c. 362.] It is true that the safe was doubtless blown open for the purpose of stealing its contents arid that the information might have been drawn so as to charge such an intent. It' is entirely possible, however, to commit one crime as a means of committing another, and in this case the destruction of the safe was but the means used to gain access to property which was in the safe. The use of explosives, by one who has broken and entered a building in the nighttime, to commit any crime constitutes an offense under section 4526. It works no prejudice to defendant, if two crimes'Were intended by the use of the explosive, that the prosecuting attorney chooses to charge a purpose to commit but one. The information is sufficient.

II. The sufficiency of the evidence is challenged. We are asked to subtract from the whole the testimony of Shoemaker, who saw defendant running from the saloon building immediately after the explosion, and then hold that the remainder will not sustain the verdict. It is said in the briefs that the morning of January 11 (at 3:15) was cloudy and that the moon was not as high as Shoemaker said it was and that, consequently, his testimony must be. ignored. This court cannot take judicial notice of the presence of clouds in the sky at a given time. As for the phase of the moon, it appears it was three quarters full and well above the horizon at the time mentioned. The discrepancy between the memory of the witness and the almanac as to that luminary’s exact position in the heavens was, in the circumstances, for the consideration of the jury in determining the credit to be given the witness’s testimony. We are not warranted in holding otherwise than that the evidence is entirely sufficient to support the verdict returned.

III. The court instructed on the substantive law of the case, circumstantial evidence, alibi, reasonable doubt, the presumption' of innocence and the credibility of the witnesses. No additional instructions were asked and no exceptions were saved to the form or substance of those given. The instructions given dealt with the several principles of law essential for the guidance of the jury and are not complained of in this court. No exception having been saved to the instructions given their correctness is not before us for decision. In fact it is not suggested that they are in any way erroneous or defective.-

The judgment is affirmed.

Boy, C., concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.